DECISION AND ORDERSummary of the Court’s Decision: The Defendant’s motion for a jury trial is DENIED.PROCEDURAL HISTORY The defendant is charged with public lewdness (PL 245.00) and exposure of a person (PL 245.01). The top charge against the defendant is an offense that carries a maximum authorized sentence of six months incarceration. Hence, pursuant to CPL 340.40, the Defendant was tried without a jury. The bench trial commenced on September 7, 2018. On that date, the Court heard opening statements and took testimony from the complainant, who was flown in from Florida, where she now lives. The trial was adjourned to October 17, 2018 and, thereafter, to November 14, 2018 for the continued bench trial. On November 14, 2018, the Court heard testimony from the People’s second and last witness, and subsequently the People rested. At the request of the Defense, the case was again adjourned to November 28, 2018 for a potential defense case and to conclude the bench trial. On November 27, 2018, the Court of Appeals decided People v. Suazo (__NY3d__, 2018 NY Slip Op 08056 [2018]), holding that a noncitizen who is charged with a deportable offense is entitled to a jury trial notwithstanding CPL 340.40. On November 28, 2018, the third day of trial proceedings and when the trial was expected to conclude, the defendant, for the first time, orally moved for a jury trial, relying on People v. Suazo (id.). The Court, reserving decision on the Defendant’s application, ordered the parties to submit briefs and/or any relevant motions on the applicability of Suazo in this case and to continue and conclude with the trial. After hearing defendant’s testimony and summations from both sides, the case was adjourned for a decision on the defendant’s application and, if not granted, a verdict.ARGUMENTSOn January 10, 2019, the defendant filed a motion/brief claiming that he is entitled to a jury trial because he “is an undocumented immigrant without any prior criminal history charged with [p]ublic [l]ewdness; a crime of moral turpitude, and that because the consequences of a conviction for [p]ublic [l]ewdness are sufficiently serious, he should be afforded a jury trial” (defendant’s brief at 3). The People argue that the Defendant failed to meet his burden under Suazo that he is at risk of deportation should he be convicted of public lewdness. Additionally, the People argue that the Defendant’s motion for a jury trial was untimely.CONCLUSIONS OF LAWDefendant’s Motion Must Be Examined Under the Standard for A Motion for MistrialThe Court concludes that, even though the Defendant did not explicitly request a mistrial or mention the word anywhere in his moving papers, his motion for a jury trial would, if granted, require the Court to terminate this trial. Thus, this motion is, in effect, a motion for a mistrial. Moreover, as acknowledged by the Defendant on November 28, 2018, were he to succeed in his request for a jury trial, the proper procedure would require the Court to order a mistrial. See Sanchez v. Tomei, 214 AD2d 740 [2d Dept 1995] [consent to retrial may be implied from totality of circumstances]; People v. Ferguson, 67 NY2d 383 [1986] [A party's consent to a mistrial may be implied]; People v. Greaves, 196 AD2d 883 [2d Dept 1993] [defendant waived double jeopardy claim by successfully requesting mistrial]). Thus, the Court’s determination depends on whether a mistrial is warranted in this case.Defendant Failed to Establish That a Mistrial is WarrantedCPL 280.10 states that “at any time during the trial, the court must declare a mistrial and order a new trial” “when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial.”The declaration of a mistrial is considered a drastic remedy and is justified only when it is “truly necessary to protect the defendant’s right to a fair trial” (People v. Cooper, 173 AD2d 551 [2d Dept 1991] ["it is axiomatic that a mistrial should be granted only when an error is shown to be prejudicial to the defendant and it deprives him of a fair trial"). For example, in People v. Copeland (61 AD2d 1016 [2d Dept 1978]), a trial judge’s statement during an Allen charge “I am sending you out again and I expect you to come here with a verdict” contained an element of coercion that warranted a mistrial. Additionally, certain prosecutorial misconduct may warrant a mistrial (see eg People v. Bennett, 40 AD3d 653 [2d Dept 2007] [Defendant relied on prosecutor's deception regarding his intention to call a witness]; People v. Copeland, 127 AD2d 846 [2d Dept 1987] [prosecutor's repeated references to inadmissible evidence, despite instructions by court, warranted granting of mistrial]).Here, the Court finds that declaring a mistrial at this stage in the proceedings so that the defendant may be retried by a jury would be improper. Significantly, the defendant does not claim that he was prejudiced and deprived of a fair trial in any way. Moreover, the Court agrees with the People’s argument and finds that the defendant’s request to be untimely. Significantly, a bench trial commenced on September 7, 2018, when the Court took testimony from the complainant, the People’s principal witness, who travelled from Florida to testify against the Defendant. On November 14, 2018, the People concluded their case and rested. The defense thereafter requested and was granted an adjournment to put on a potential defense case. Since the first time the defendant made any application and/or motion on this issue was on November 28, 2018, clearly after the conclusion of the People’s case, the Court finds that jeopardy had attached and that the request was untimely (see CPL 40.30[1][b] [for a bench trial, Jeopardy attaches when the first witness is sworn]; Pronti v. Allen, 13 AD3d 1034, 1036 [3d Dept 2004]).Moreover, a retrial would not only be a burden and great expense to the complainant, who would have to travel to New York a second time to testify against the defendant, but would also require her to relive a harrowing experience for a second time. These impositions on the complainant would be unnecessarily burdensome absent a showing that the defendant was denied a fair trial.While the Court acknowledges that Suazo was decided prior to the conclusion of this trial, this did not preclude the Defendant from raising a Sixth Amendment claim for a jury trial at the outset of the trial and/or any time prior thereto. Although Suazo is a historic decision that grants non-citizens, who are charged with petty non-jury trial offenses in New York City, a jury trial, it clearly places the burden on the defense to affirmatively and as a condition precedent, timely move, argue and demonstrate that a conviction thereon would have severe deportation consequences. The foundation for that decision, as relied upon by Suazo, existed prior to the commencement of this trial (see US Const, 6th Amend; Blanton v. City of North Las Vegas, 489 US 538, 542 [1989] [courts must examine "whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial"]; Duncan v. Louisiana, 391 US 145 [1968]; see also Padilla v. Kentucky, 559 US 356, 363-364]). Hence, decisional law existed for the defendant to argue, given the circumstances, that he was entitled to a jury trial under the Sixth Amendment. The defendant did not move for a jury trial on any grounds until after the trial had started and jeopardy clearly attached.In any event, even if Suazo mandated retroactive application and retrial, the defendant failed to meet his burden of overcoming “the presumption that the crime charged is petty and establish[ing] a Sixth Amendment right to a jury trial” (Suazo, 2018 NY Slip Op at *8). Although the defendant states that he is a noncitizen and that the offense is a crime of moral turpitude, he does not claim that a conviction would make him deportable.Accordingly, given the Defendant’s request at this stage of the trial, and without a showing that he was denied a fair trial, the motion is DENIED.This constitutes the Decision and Order of the Court.Dated: March 18, 2019
