Criminal Court of the City of New York, Queens County, January 18, 2019

Queens Law Associates (Dorothy Hughes of counsel) for defendant.

Richard A. Brown, District Attorney (Curtis Carr of counsel), for plaintiff.

Summary of the court's decision: The defendant's motion for a jury trial is denied.

The defendant was charged with two counts of assault in the third degree (Penal Law § 120.00 [1]) and two counts of harassment in the second degree (Penal Law § 240.26). Prior to the start of the trial, the People reduced the assault charge, an A misdemeanor, to an attempted assault, a B misdemeanor; thus, the offenses were triable without a jury pursuant to CPL 340.40. Notwithstanding, the defendant, a citizen of the United States, moved for a jury trial, arguing that a denial of a jury trial violated his right to equal protection under the United States Constitution in light of the recent Court of Appeals decision in People v Suazo (32 NY3d 491 [2018]). The court denied the defendant's motion for a jury trial. Following a bench trial, the defendant was found not guilty of all of the charges.

The issue before the court, therefore, is whether the holding in Suazo extends to US citizens, effectively abrogating CPL 340.40. The court holds that it does not.

In Suazo, a noncitizen defendant was convicted, following a bench trial, of the deportable offense of attempted criminal obstruction of breathing or blood circulation. The defendant appealed, arguing that he had a constitutional right to a trial by jury. The Court of Appeals reversed, holding that the Sixth Amendment guarantees jury trial to a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation (32 NY3d at 493).

In so ruling, the Court reiterated the unremarkable principle that the right to a jury trial "does not extend to every criminal proceeding" (Suazo, 32 NY3d at 495, quoting District of Columbia v Clawans, 300 US 617, 624 [1937]). Thus, so-called "petty offenses," i.e., those carrying a maximum authorized term of imprisonment of less than six months, may be tried without a jury (id.). However, the consequence of deportation, even if technically collateral, "is a sufficiently severe penalty to puncture the six-month demarcation between serious and petty offenses" (32 NY3d at 500). This is so because "the penalty of deportation is among the most extreme and [*2]. . . it may, in some circumstances, rival incarceration in its loss of {**62 Misc 3d at 690} liberty" (32 NY3d at 508). Therefore, the Court found the Sixth Amendment entitled the defendant to a jury trial.

Significantly, and of relevance here, the Court of Appeals' narrow ruling puts the burden on the defendant "to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial" (32 NY3d at 507), leaving intact CPL 340.40 and the long-standing principle that whether someone is entitled to a jury trial is primarily adjudged by the maximum authorized period of incarceration (32 NY3d at 496; see Baldwin v New York, 399 US 66 [1970]).

Consequently, Suazo has no application to this defendant who is a citizen of the United States, and this court is bound by CPL 340.40, which requires a bench trial for offenses, tried in New York City Criminal Court, for which the authorized term of imprisonment is not more than six months. Any recourse the defendant seeks with respect to amending the statute to give all defendants, regardless of citizenship and location of the court having trial jurisdiction, the right to a jury trial lies within the authority of the New York State Legislature, and not the trial courts.

Accordingly, the defendant's motion for a jury trial is denied.