Joseph D. Nohavicka

On Nov. 27, 2018, the New York Court of Appeals handed down a decision that fashions a new rule when the criminal justice system is processing a non-citizen: No matter what level crime the non-citizen is charged with, if the possible consequence is deportation, he or she is entitled to a jury trial. The case is People v. Suazo, 2018 NY Slip Op 08056. The distilled holding of Suazo is that immigration consequences transform a state “petty” offense into a “serious” offense.

The facts of Suazo, a Bronx case, are not extraordinary: The defendant grabbed the mother of his children, threw her to the floor, placed his hands around her neck and squeezed and then struck her numerous times in the head and neck with his fist. A month later, Suazo was also charged with criminal contempt in the second degree due to his violations of an order of protection.

The procedure of Suazo was also not extraordinary: The case was coming up for trial, the People moved to reduce the Class A misdemeanor charges to attempt crimes to Class B misdemeanor crimes and lower grade offenses, with the misdemeanors punishable by a maximum authorized sentence of three months in jail. Because the criminal action was commenced in New York City, the offenses were triable without a jury pursuant to CPL 340.40. Over opposition, the bench trial commenced and the non-citizen was convicted. The fact that the conviction was a deportable offense was not in dispute.

The dispute was extraordinary: The defense asserted that Suazo was a noncitizen charged with deportable offenses, and that the possibility of deportation upon conviction rendered the Class B misdemeanors sufficiently serious to mandate a jury trial under the Sixth Amendment. The People argued that deportation is a collateral consequence arising out of federal law that does not constitute a criminal penalty for purposes of the Sixth Amendment right to a jury trial.

On appeal, the Appellate Division affirmed the judgment and held that deportation is a collateral consequence of conviction and did not trigger the Sixth Amendment guarantee of a jury trial. The Court of Appeals reversed. Here is why:

Writing for the majority, Judge Stein wrote: “There can be little doubt that deportation is a sufficiently severe penalty to puncture the six-month demarcation between serious and petty offenses because the loss of liberty associated therewith is analogous to that inherent in incarceration and because deportation—which may result in indefinite expulsion from the country and isolation from one's family—is frequently more injurious to noncitizen defendants than six months or less of imprisonment.”

The Suazo majority rejected the prosecutions two arguments: (1) removal from the country is not a criminal penalty of a conviction, but merely a civil collateral consequence, which should not be considered a penalty for Sixth Amendment purposes; and (2) deportation cannot obligate a New York court to furnish a jury trial to a defendant charged with a Class B misdemeanor crime because it is a consequence imposed as a matter of federal law and, therefore, does not reflect the New York State Legislature's judgment concerning the seriousness of an offense.

Rejecting the prosecution's first argument, the Court noted that “even if deportation is technically collateral, it is undoubtedly a severe statutory penalty that flows from the federal government as the result of a state criminal conviction.”

Rejecting the prosecution's second argument, the majority noted that “[i]nasmuch as federal deportation will almost invariably flow from certain New York state convictions, we see no persuasive reason to exclude it from the constitutional inquiry of whether the penalties of a crime are severe enough to warrant extending the protections of a jury trial.”

The majority acknowledged that the Suazo holding will obligate New York courts, in the narrow context of cases involving CPL 340.40-mandated nonjury trials of lesser misdemeanors in New York City, to determine the potential immigration consequences associated with pending charges, and acknowledged the People's concerns regarding the practicalities of litigating a defendant's immigration status. Significantly, the decision states: “In this regard, we emphasize that it is the defendant's burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial.”

Translation: The defendant has the burden to prove that he or she is in the country illegally.

Judge Garcia dissented, writing: “It is doubtful that importing federal immigration law into the penalty analysis was something the Supreme Court intended when it made the Sixth Amendment right to trial by jury for “serious” offenses applicable to the states.” Judge Garcia, noting that the Supreme Court has the ultimate authority to settle this issue, “should do so.”

Judge Wilson, in a separate dissent, analyzes the majority's reasoning and maps it into a seven-step construct:

(1) the Sixth Amendment to the U.S. Constitution guarantees a jury trial for all offenses that are “serious” rather than “petty”;

(2) “seriousness” is measured by the severity of the penalty associated with the offense;

(3) the penalty to be considered is not limited to the term of incarceration, but encompasses other governmentally-imposed consequences;

(4) deportation is such a penalty;

(5) deportation is severe;

(6) even though deportation is technically civil, it is difficult to classify as civil or criminal; and,

(7) even though the penalty of deportation is imposed by the federal government, not the state government under whose laws the defendant is being prosecuted, it is nevertheless equally cognizable.

Criticizing that framework, Judge Wilson wrote that “if the severity of deportation entitles one to a jury trial under the Sixth Amendment, the entire federal system of removal of undocumented aliens is unconstitutional. If so, more than a century of U.S. Supreme Court decisions must be discarded.” Responding to his conclusion, Judge Wilson capstoned that thought, stating: “A certain Court can so hold, just not this one.”

One of the immediate effects of this important and vexing constitutional decision from the Court of Appeals is that if citizenship is not conceded by the prosecution, our courts will now have to conduct a Suazo hearing, with the burden borne by the defense to establish that the defendant is a non-citizen.

Joseph D. Nohavicka is a partner at Pardalis & Nohavicka.