Under state law, defendants in New York City are allowed to be denied a trial by jury if the maximum penalty of a charge is less than six months in jail. Photo: Jamie Rector/Bloomberg News

The New York Court of Appeals is set to decide whether an immigrant who pleaded guilty to violating a temporary order of protection should have been guaranteed a trial by jury for the low-level charge due to the possibility of deportation, as has been allowed before.

The case follows on the heels of one handed down last year by the state's high court, in which the judges said immigrants could be afforded a jury trial on low-level charges if they show a conviction could lead to their deportation.

But Chief Judge Janet DiFiore did not appear convinced that the immigrant whose case was before them Wednesday, Sixtus Udeke from Nigeria, should be afforded the same opportunity. She started arguments with a question for his attorney, Benjamin Wiener from the Center for Appellate Litigation.

"Isn't his case very different from Suazo procedurally?" DiFiore asked him.

DiFiore was referring to last year's case involving Saylor Suazo, a noncitizen who was found guilty in a bench trial on various charges related to an alleged assault. He was tried on a class B misdemeanor and denied the right to a jury trial on the charge.

That's because, under state law, defendants in New York City are allowed to be denied a trial by jury if the maximum penalty of a charge is less than six months in jail. That's the case for class B misdemeanors. 

In the Suazo case, the Court of Appeals essentially struck down that section of state law as it pertains to immigrants, as long as those individuals can show that a conviction would result in their deportation. The burden is on the immigrant to show they could be deported.

Because of that case, immigrants in New York City can no longer be denied the right to a jury trial under the Sixth Amendment of the U.S. Constitution, as long as they can show that their conviction on low-level charges could result in their removal from the country.

Udeke's case predates the decision in Suazo by about three years, but his attorney argued that his right to a jury trial under the Sixth Amendment was no different then than it was when Suazo's case made it to the Court of Appeals.

"He was led to believe by the court that he would have no right to a jury trial on the misdemeanor on which he pleaded guilty," Wiener said. "That wasn't true in light of Suazo."

Udeke's case is similar to Suazo's in that he was ultimately convicted on a class B misdemeanor, and both defendants were immigrants. From there, the facts of each case differ.

Unlike Suazo, Udeke entered into a plea deal with prosecutors after he was initially charged with a class A misdemeanor, which would have presumably made him eligible for a jury trial. He was charged by the Manhattan District Attorney's Office.

Before Udeke accepted the plea, New York City Criminal Court Judge Laurie Peterson explained to him the rights he was giving up through the agreement with prosecutors. When she told him he was waiving his right to a trial by jury, Udeke asked for clarification.

"By jury?" Udeke asked, according to the record.

Udeke's attorney, at the time, clarified that they were told the charge would be reduced to a class B misdemeanor through the plea. Three years ago, before the Suazo decision, that would mean Udeke was not eligible for a jury trial on that level of crime. 

"A trial by a jury or a judge, depending on how the People proceeded," Peterson responded. Udeke said he understood the terms of the deal.

Wiener said Peterson, at the time, had misrepresented Udeke's rights by saying that a trial by jury would depend on how prosecutors chose to pursue the case if he decided not to accept the plea deal. He could seek a jury trial regardless of their strategy, Wiener said.

"He had the right to a jury trial either way, no matter how the prosecution chose to proceed," Wiener said. "It didn't depend on whether they reduced the charge or not, or what they actually would have done. And that was the mistake the court made here."

The Manhattan District Attorney's Office disagreed during arguments before the Court of Appeals on Wednesday. The office was represented by Assistant District Attorney Jonathon Krois.

Krois argued that the facts distinguishing Udeke's case from Suazo's were too different to guarantee him the same result. In Suazo's case, the Court of Appeals gave him a new trial.

Unlike Suazo, Udeke was before Peterson on a plea deal, Krois said. His rights, including that of a jury trial, were explained to him at the time, and he was also warned of the possibility of deportation. Despite those terms, he accepted the plea, Krois said.

"Without an affirmative misstatement … with everything else on the record, this is certainly a voluntary plea," Krois said.

He also stressed that Suazo did not guarantee immigrants the right to a jury trial in New York City on low-level charges, it only created a mechanism in which that individual must show a conviction could result in their deportation.

In Udeke's case, Krois argued, prosecutors could have proceeded in ways that may not have threatened his immigration status. That would mean he could be denied a jury trial under state law and the Suazo decision, he said.

"Suazo did not establish a completely inalienable right for any class of individuals to a jury trial. What Suazo said was that the defendant has a burden," Krois said. "There were certainly ways that we could have gone forward here that would not have implicated deportability at all."

If the Court of Appeals sides with Udeke in the case, it could be an opportunity to expand the rights of immigrants beyond Suazo to a trial by jury in New York. A decision will likely be handed down next month.

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