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NY Right to a Jury Trial in Deportable Cases


The deportation of noncitizens is an enormous issue of public, political and legal scrutiny. On November 27, 2018, the New York Court of Appeals held “that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation…is entitled to a jury trial under the Sixth Amendment.”

Our criminal justice system is slowly gravitating toward one where people are jailed while determining if such person is not guilty and where people are set free upon a guilty plea irrespective of actual guilt or innocence. In 2012, the Supreme Court noted that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” Rejecting the idea that a plea bargain can “wipe clean any deficient performance by defense counsel,” the Supreme Court observed “the reality that criminal justice today is for the most part a system of pleas, not a system of trials.” What ever happened to the jury trial?

In People v. Suazo, the Defendant was charged with a myriad of crimes stemming from an incident where the “defendant grabbed the mother of his children, threw her to the floor, placed his hands around her neck and squeezed—thereby obstructing her breathing—and then struck her numerous times in the head and neck with his fist.” Right before trial, the People moved to reduce the class A misdemeanor charges to attempt crimes, “offenses [which] were triable without a jury pursuant to CPL 340.40.” The Defendant opposed the reduction unsuccessfully. After a bench trial, the Defendant was found “guilty of attempted assault in the third degree, attempted criminal obstruction of breathing or blood circulation, menacing in the third degree, and attempted criminal contempt in the second degree” to which he appealed. The appellate division affirmed judgment and the Court of Appeals granted leave to appeal.

The Court of Appeals noted that although the Federal Constitution speaks in absolute terms, it is well settled that the right to a jury trial “does not extend to every criminal proceeding”[v] and that the entitlement to jury trial is dependent upon whether an offense is serious or petty.[vi] The Court of Appeals held that “the CPL exception providing for nonjury trials of certain misdemeanors in New York City, does not serve to deny a defendant subject to that exception the opportunity to establish that the charged crimes are considered serious enough by society, based on the penalties associated therewith, to entitle the defendant to a jury trial as guaranteed by the Sixth Amendment.”

The Court of Appeals makes clear in People v. Suazo 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.” This is completely consistent with the Supreme Court in Kentucky v. Padilla.[vii] More recently, the Supreme Court in Jae Lee went so far as to say that, in a guilty plea context, rather than determining whether the “outcome of the plea process would have been different with competent advice,”[viii] the guilty plea could be withdrawn so that the Defendant could take a “Hail Mary” and go to trial to avoid deportation. The New York Court of Appeals in People v. Sauzo “emphasize[s, however,] 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…” going forward and that, in the event of a dispute, the Court is “confident that our courts are competent to resolve such questions as they are presented.”

The Right to a Jury Trial

The tenor of the community must become part of the criminal justice system. “The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.”[ix] The highest court in both the United States and New York recognize the impact of deportation as one necessitating a trial in certain circumstances. Here, People v. Sauzo held that “a noncitizen defendant charged with a deportable crime is entitled to a jury trial under the Sixth Amendment, notwithstanding that the maximum authorized sentence is a term of imprisonment of six months or less.” We are yet to see the full impact of this decision upon our local criminal courts.


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