immigration and customs enforcement ICE-Article-201903292133In 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.

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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.

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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.”

Judge Wilson, joined by Judge Rivera, filed an impassioned dissent, which argued, first narrowly then more broadly, that an inmate’s consent to a search by DOC for security purposes “cannot reasonably be construed to include consent for the District Attorney … to search that information for prosecutorial purposes.” On the narrow ground, Judge Wilson put this question: “if I ask to borrow your car to drive to the corner store … may [I] enter it into a demolition derby, because I did not say the only thing I was going to use it for was to go to the store [?]”

More broadly, Judge Wilson questioned the continued viability of the “third-party doctrine”—that something voluntarily disclosed to another is not private and therefore not subject to Fourth Amendment protections. Calling the majority’s opinion a “flat map of the world imposed on a spherical one,” he argued that Fourth Amendment law must adapt to the times. He pointed to recent U.S. Supreme Court cases—Kyllo v. United States, 533 U.S. 27 (2001), Riley v. California, 1345 S. Ct. 2473 (2014) and Carpenter v. United States, 138 S. Ct. 2206 (2018)—as recognizing that blind application of the third-party doctrine can “undermine the privacy rights we [should] want to allow as a society.”

In Diaz, DOC recorded some 1,100 of the defendant’s prison calls during his eight months on Rikers Island and turned them all over to the District Attorney’s Office, which introduced excerpts of four calls at trial.

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Trial Judge Conduct

People v. Towns is worth noting because the trial judge’s conduct there was so out of line. People v. Towns, 33 N.Y.3d 326 (2019). Prior to Towns’ trial for several gunpoint robberies, the judge negotiated a plea agreement with Towns’ co-defendant that required the co-defendant to plead guilty in exchange for a determinate sentence of between 9 and 15 years with the ultimate sentence to be based upon the co-defendant’s cooperation in the prosecution of Towns. If the co-defendant testified against Towns, the sentence would be at “the lowest end of [the] term”—i.e., presumably nine years. The prosecutor was not a party to the agreement and expressed his apprehension over the judge’s involvement.

Not surprisingly, the Court of Appeals reversed Towns’ conviction, finding that the trial judge had “assum[ed] the function of an interested party and deviat[ed] from its own role as a neutral arbiter.” Many prosecutors desire to be judges; the judge in Towns, it seems, desired to be a prosecutor.

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Appellate Counsel Issues

In People v. Alvarez, the Court considered whether the defendant’s appellate counsel had been ineffective in not challenging defendant’s sentence of 66 2/3 years to life for conspiracy in the first degree, murder in the second degree, two counts of attempted murder in the second degree and other lesser crimes, arising out of his membership in a drug trafficking organization. People v. Alvarez, 33 N.Y.3d 286 (2019). (Defendant was sentenced in 1996, and the case reached the Court on defendant’s coram nobis petition.) The majority concluded (1) that counsel’s brief to the Appellate Division, while “somewhat terse … and not a model to be emulated,” demonstrated “a grasp of the relevant facts and law” and (2) that, given the “heinous nature of defendant’s violent crimes and [his] lamentable … lack of remorse at sentencing,” counsel’s decision to forgo pursuing a reduction of defendant’s sentence did not constitute ineffectiveness, since such a claim had little chance to succeed.

Judge Rivera and Judge Wilson dissented in separate opinions. Judge Rivera called counsel’s submission to the Appellate Division “a slapdash writing that counsel had the temerity to represent as an appellate brief.” The brief, she wrote, “violates every rule about effective appellate advocacy taught to law students across the country,” as well as “basic rules of syntax and grammar.”

In his dissent, Judge Wilson agreed that the brief was of “atrocious quality” but focused more on what it (and the majority opinion) did not say. Alvarez was 19 when sentenced. Now, almost 25 years later, he has completed numerous rehabilitation programs and suffers from Hodgkin’s Lymphoma, which has left him a paraplegic. Ineligible for parole until he is 87, he will live his life in prison “in constant pain and under full-time medical care.” “Were Mr. Alvarez your son,” Judge Wilson asked, “would you have instructed his lawyer not to ask the Appellate Division to exercise its interest of justice jurisdiction to give him a chance [at] parole?” (As the majority noted, the facts Judge Wilson focused on—Alvarez’s rehabilitation and debilitating illness—occurred long after the time for filing his appeal brief.)

Recent literature on sentencing encourages the establishment of a procedure to allow a “second look” at long sentences imposed on young offenders to see whether a sentence reduction is warranted. The legislature should consider such a measure.

In People v. Grimes, the Court considered whether appellate counsel’s failure to file a timely criminal leave application within the 30-day window provided by CPL §460.10(5)(a) or to move for an extension to cure the failure within the one-year grace period provided by CPL §460.30(1) deprived the defendant of his state constitutional right to effective assistance of counsel, where counsel had promised to file the application and the defendant did not learn of the failure to file until after the grace period had expired. People v. Grimes, 32 N.Y.3d 302 (2018). (In Andrews in 2014, the Court held that the same failing did not violate the defendant’s federal constitutional right to effective assistance of counsel because a defendant does not have a federal right to counsel in seeking a “second-tier,” discretionary review. People v. Andrews, 23 N.Y.3d 605 (2014); Ross v. Moffitt, 417 U.S. 600 (1974).) Writing for the majority, Chief Judge Janet DiFiore reasoned that this was not an instance where the State Constitution provided greater protection than the Federal Constitution. Finding no state constitutional violation, she declined to “abrogate the statutory time limit … for second-tier appeals.”

Judge Wilson, joined by Judge Rivera, dissented in a sharply-worded opinion. As Judge Wilson saw it, the majority “ha[d] boarded the wrong boat,” employed “sleight of hand,” and erected “two bogeymen to ward away Mr. Grimes’ claim.” The majority’s opinion, he wrote, was “mystifying” and “plain weird.” The lynchpin of the dissent was that the rules of the Appellate Divisions require appellate counsel to discuss a leave application with the defendant and to file an application if requested. See 22 N.Y.C.R.R. §606.50. How could it be, Judge Wilson asked, that the state requires appellate counsel to continue to represent the defendant, but, if counsel is ineffective in doing so, that “is just fine?”

Judge Wilson also took exception to the majority’s observation that counsel is unimportant to the determination of a leave application. He recognized that a leave application requires the submission of the briefs and opinion below, but argued that those submissions do not render counsel’s assistance unnecessary. As he did last term, he used a restaurant analogy: “When one enters a restaurant with a ‘No Shirt, No Shoes, No Service’ policy, one needs to do more than walk in wearing a shirt and shoes to dine. More is required, such as placing an order and paying your bill (and pants are probably a good idea, too).” For those of us who file criminal leave applications, the notion that good lawyering can matter—that we sometimes wear the pants—is reassuring.

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Additional Decisions

In other cases, the Court held that a defendant’s request to proceed pro se made after jury selection has commenced is untimely (People v. Crespo, 32 N.Y.3d 176 (2018)); that a counterfeit event ticket can be prosecuted as a forged instrument (People v. Watts, 32 N.Y.3d 358 (2018)); that a defendant’s out-of-state conviction does not require him to register as a sex offender in New York unless it is for a sex offense, even if registration is required in the foreign state (the defendant shot and killed his half-sister with “no sexual component” in Virginia, where his registration was required) (People v. Diaz, 32 N.Y.3d 538 (2018)); that as a condition of probation, a defendant can be required to wear and pay for a bracelet that measures the intake of alcohol, provided he can afford it (People v. Hakes, 32 N.Y.3d 624 (2018)); and that the date a sentence was first imposed (and not the date of a later resentencing) is the controlling date for determining whether the defendant is a predicate felon (People v. Thomas, 33 N.Y.3d 1 (2019)).

And also: that while it is improper to conduct a reconstruction hearing to determine if defense counsel received meaningful notice of a substantive jury note, a reconstruction hearing can be conducted to determine whether a jury note was merely a draft that was “discarded … and never submitted to the court” (People v. Meyers, 33 N.Y.3d 1018 (2019); see also People v. Parker, 32 N.Y.3d 49 (2018)); that defense counsel was not ineffective in arguing what was essentially a jury nullification defense when there was no other viable strategy (People v. Mendoza, 2019 WL 2453613); that a sex offender is not required to register his Facebook account as an “internet identifier,” although he must disclose the email address that he uses to access the account (People v. Ellis, 2019 WL 2618071); and that grand jury testimony is admissible under the past recollection recorded exception to the hearsay rule if the requisites of the exception are satisfied. People v. Tapia, 33 N.Y.3d 257 (2019).

The box score: By my count, the Court decided 42 criminal cases. The People prevailed in 31 cases (74%) and the defense in 10 cases (24%); one case was essentially a draw. The Court affirmed the Appellate Division in 27 (66%) and reversed in 14 (34%). Twenty-one cases were decided by memorandum opinion. Judge Rivera dissented in 14 cases (all on the side of the defendant) and Judge Wilson in 12 (all but one on the side of the defendant).

As the chart below shows, the 42 criminal cases that the Court decided this past term was far less than during the years 2009 to 2016, when Jonathan Lippman was Chief Judge; it represents a return to the early years of the century.

Chart of cases decidedWhether less is more—whether hearing fewer cases allows the Court more time to resolve substantial legal issues—is a question on which reasonable minds can differ. It does, of course, make it easier to write a review article.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.