Deportation, Privacy and Effectiveness of Counsel Issues Tackled in Stand-Out Cases

In its 2018-2019 term, the New York Court of Appeals followed much the same course in criminal law as it has the past few years. Prosecutors had more victories than did defendants; memorandum opinions were commonplace; and Judges Jenny Rivera and Rowan Wilson frequently dissented, often in lengthy opinions. A few cases stand out.

Jury Trial When Potential Penalty Is Deportation

In People v. Suazo, the Court held that a non-citizen charged in New York City with a class B misdemeanor is entitled to a jury trial under the Sixth Amendment if a conviction carries the potential penalty of deportation, even though by statute (CPL §340.40(2)) a trial is “a single judge trial.” People v. Suazo, 32 N.Y.3d 491 (2018). (Suazo was charged with attempted assault in the third degree and attempted criminal contempt in the second degree, arising out of an incident involving the mother of his children; the crimes had been reduced to attempts, and therefore B misdemeanors, presumably to avoid a jury trial.) Writing for the majority, Judge Leslie Stein reviewed the U.S. Supreme Court cases and found (1) that, as a general rule, where the maximum term of imprisonment was six months or less a jury trial is not required but (2) that a jury trial is required “where a legislature packs an offense … with [other] onerous penalties that … do not puncture the [six]-month incarceration line.” Blanton v. City of North Las Vegas, Nevada, 489 U.S. 538, 543 (1989). Deportation, Judge Stein wrote, “is a sufficiently severe penalty to puncture the six-month demarcation,” since it “may result in indefinite expulsion from the country and isolation from one’s family.”

Judge Michael Garcia and Judge Wilson dissented in separate opinions. Judge Garcia believed that Sixth Amendment analysis should focus on the penalties imposed by the New York state legislature, not on collateral consequences under federal law. He encouraged the U.S. Supreme Court to take up the issue. See Crane, “Incorporating Collateral Consequences in Criminal Procedure,” 57 Wake Forest Law Review 1, 55-56 (2019) (agreeing with Judge Garcia). Judge Wilson saw it differently: Because an undocumented alien may be deported in an administrative proceeding before an immigration judge, he could not understand how the severity of deportation could entitle a defendant to a jury trial in a criminal case where the jury trial right did not otherwise exist. He encouraged the New York legislature to amend the statute and extend the jury right to all B misdemeanants, so that the issue would “vanish.”

Suazo leaves several questions unanswered. How will judges determine if B misdemeanor charges have potential immigration consequences? The majority suggests that a judge can contact federal immigration authorities who “are statutorily obligated to respond.” (Judge Garcia quipped, “if you call Immigration and Customs Enforcement, they will certainly respond.”) What if a defendant is deportable regardless of the outcome of the criminal trial (e.g., he has overstayed his visa)? The majority indicated that a jury trial might not be required in such circumstances. Does the logic of Suazo apply if a defendant faces other collateral consequences such as loss of housing? The majority left the issue open. And finally, will the U.S. Supreme Court ever hear the issue? The Bronx District Attorney’s Office, which prosecuted the case, decided not to seek certiorari.

Right to Privacy

In People v. Diaz, the Court considered a question left open in Johnson in 2016: Does the Department of Correction’s release of an inmate’s recorded calls to the District Attorney’s Office without a warrant violate his Fourth Amendment right to privacy? People v. Diaz, 33 N.Y.3d 92 (2019); People v. Johnson, 27 N.Y.3d 199 (2016). Writing for the majority, Judge Paul Feinman observed that “federal and state courts across the country have long held that detainees provided with prior notice of the government’s monitoring and recording of their phone calls have no reasonable expectation of privacy in the content of the communications.” (On Rikers Island, signs are posted near the inmate telephones stating in English and Spanish that calls are recorded “in accordance with DOC Policy,” and a message plays in both languages containing a similar admonition at the outset of each call.) Noting that DOC policy states that it will provide copies of calls to a District Attorney’s Office upon request, the Court held that no additional Fourth Amendment protections prevent DOC “from releasing the recording[s] … absent a warrant.”