The Lawletter Vol 44 No 2
Jason Holder—Senior Attorney, National Legal Research Group
Following an incident in which he allegedly grabbed, choked, and struck the mother of his children, Saylor Suazo (“Suazo”) was charged with a variety of crimes including assault in the third degree, unlawful imprisonment in the second degree, criminal obstruction of breathing or blood circulation, endangering the welfare of a child, menacing, and harassment in the second degree. People v. Suazo, No. 117, 2018 WL 6173962, at *1 (N.Y. Nov. 27, 2018). Immediately before the start of trial, however, the prosecution moved to reduce the charges to attempt crimes. Id. This reduction meant that Suazo now faced a maximum sentence of three months in jail and, more importantly, that the offenses could be tried without a jury pursuant to Criminal Procedure Law § 340.40(2). Id.
Suazo challenged the reduction and continued to assert his right to a jury trial, arguing that he was a noncitizen charged with deportable offenses rendering any conviction sufficiently serious to mandate a jury trial under the Sixth Amendment. Id. In response, the prosecution argued that any deportation was merely a "collateral consequence" and not a criminal penalty for the purposes of the Sixth Amendment. Id. Effectively denying Suazo's challenge, the trial court proceeded to a bench trial and found him 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." Id. On appeal, the Appellate Division affirmed the judgment, agreeing with the state that deportation is merely a collateral consequence. See People v. Suazo, 146 A.D.3d 423, 424, 45 N.Y.S.3d 31, 32 (N.Y. App. Div. 2017). A Judge of the Court of Appeal of New York then granted leave to appeal. Suazo, 2018 WL 6173962, at *1.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. The Suazo court began its analysis by noting that "[a]lthough 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.'" Id. at *2 (quoting District of Columbia v. Clawans, 300 U.S. 617, 624 (1937)). Instead, only defendants accused of serious crimes are afforded a right to trial by jury. Id. In furtherance of this mandate, the Supreme Court has "instructed that the 'most relevant criteria' for evaluating the seriousness of an offense is 'the severity of the maximum authorized penalty.'" Id. (quoting Baldwin v. New York, 399 U.S. 66, 68 (1970)).
Despite this guidance, the Suazo court noted that the Supreme Court has clarified that "penalty" does not refer solely to a maximum term of incarceration and 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." Id. at *3 (emphasis in original) (quoting Blanton v. City of North Las Vegas, 489 U.S. 538, 542 (1989)). Accordingly, the court's "heightened focus on the authorized prison term does not, however, necessarily render every other penalty that flows from a criminal conviction inconsequential." Id. Moreover, the enactment of Criminal Procedure Law § 340.40(2) "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." Id.
While acknowledging that "deportation—a federally imposed penalty—is technically a civil collateral consequence of a state conviction," id. at *5, the Suazo court held that it remains enmeshed with criminal convictions such that "it is undoubtedly a severe statutory penalty that flows from the federal government as the result of a state criminal conviction." Id. at *6. Seeking further guidance, the Suazo court noted that the Supreme Court has previously "presumed that a collateral consequence could potentially render an offense serious," id. (citing Blanton, 489 U.S. 538), and held "albeit in a different context, that collateral consequences . . . attendant to deportation . . . are not categorically excluded from Sixth Amendment protection." Id. (citing Chaidez v. United States, 568 U.S. 342, 352 (2013)).
In rejecting the state's argument that deportation cannot serve as a serious penalty because it is imposed by federal, rather than state, law, the Suazo court held that "[t]he salient fact is that a legislative body authorized to attach a penalty to a state conviction has determined that the crime warrants the onerous penalty of deportation." Id. Moreover, given that federal deportation "will almost invariably flow from certain New York state convictions," the court could see no reason to exclude its consideration from the question of whether the crimes' "penalties" were severe enough to warrant the protections of a jury trial. Id. at *7.
Taking these factors into consideration. the Suazo court held that "[i]t is now beyond cavil that the penalty of deportation is among the most extreme and that it may, in some circumstances, rival incarceration in its loss of liberty." Id. at *8. Accordingly, "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." Id.
Two judges dissented from the court's opinion and they filed separate dissenting opinions. In his dissent, Judge Michael Garcia argued that federal immigration law "should not override the New York State Legislature's view of the seriousness of the charged offense, as expressed by the maximum penalty authorized." Id. at *9. Judge Garcia also noted other potential problems stemming from the majority's ruling. See id. at *12 ("Is the enhanced 'penalty' under the majority's rule the difference in the conditions that attach for removal after conviction? Does the bar on application for reentry make a crime 'serious' for a defendant who is otherwise deportable?"). In a separate dissenting opinion, Judge Rowan Wilson argued that the majority's decision "ignores or obscures one insuperable problem: the penalty for violation of United States immigration laws includes deportation, and deportation proceedings have never been deemed to entitle a noncitizen to anything more than an administrative hearing—certainly not a jury trial." Id. at *14. Judge Wilson also noted that the problem creating the case at bar stemmed from the exception found in section 340.40(2) which entitles all persons in New York a jury trial for charges of class B misdemeanors, "unless they reside in New York City." Id. at *15. If the legislature would simply "extend that right to all New Yorkers, the problems underlying this issue would vanish." Id.
