Supreme Court, New York County, October 15, 2019

Michael Fineman for defendant.

Cyrus R. Vance, Jr., District Attorney (Michael Dinet of counsel), for plaintiff.

The defendant filed a motion seeking a jury trial in this matter. The People oppose. Defendant was charged with one count of forgery in the second degree (Penal Law § 170.10 [3]), one count of criminal possession of a forged instrument in the second degree (Penal Law § 170.25), two counts of endangering the welfare of a child (Penal Law § 260.10 [1]), two counts of criminal contempt in the second degree (Penal Law § 215.50 [3]), one count of making a punishable false written statement (Penal Law § 210.45), and one count of falsely reporting an incident in the third degree (Penal Law § 240.50 [3] [a]).

At arraignment, the two felony charges (one count of forgery in the second degree [Penal Law § 170.10 (3)]; one count of criminal possession of a forged instrument in the second degree [Penal Law § 170.25]) were dismissed on the People's motion. This court, by decision and order dated May 18, 2018, dismissed the two counts of endangering the welfare of a child (Penal Law § 260.10 [1]). Accordingly, the charges that remain against defendant are misdemeanors.

CPL 340.40 (2) provides that in

"any local criminal court a defendant who has entered a plea of not guilty to an information which charges a misdemeanor must be accorded a jury trial, conducted pursuant to article three hundred sixty, except that in the New York city criminal court the trial of an information which charges a misdemeanor for which the authorized term of imprisonment is not more than six months must be a single judge trial."

Defendant argues that despite the clear language of CPL 340.40 (2), the Court of Appeals' recent holding in People v Suazo (32 NY3d 491 [2018]) provides a basis for defendant's request for a jury trial. In People v Suazo, the Court of Appeals held that the defendant, who was charged with misdemeanor crimes, was nonetheless entitled to a jury trial, given if convicted, he would be deportable. Defendant argues that the same rationale should apply in this instance given her parental rights are constitutionally protected and were taken away by this court in a custody case involving her son, A.K.M. (DOB xx/xx/2011) (hereinafter the child), given this court relied heavily on the pending criminal case in making its custody determination.{**65 Misc 3d at 993}

Defendant contends that prior to being arrested for allegedly making a false report, she enjoyed full physical and legal custody of the child. After her arrest, temporary custody of the child was awarded to the complainant, S.K., who is the child's father (hereinafter complainant father). She posits that the child's attorney, Michael Scherz, Esq., took a position [*2]antagonistic to defendant during the custody trial and would frequently ask counsel for defendant about the status of the criminal matter. She argues that this court adopted Mr. Scherz's argument practically in its entirety, and cited the instant pending criminal case as justification to issue a final order changing custody from the defendant to the complainant father. She contends that because the criminal case had a profound effect on defendant's loss of custody of the child, she should be entitled to a jury trial.

In opposition the People argue that the Court of Appeals carved out a narrow exception in People v Suazo for individuals who are facing deportation if convicted. The People contend that under People v Suazo, the defendant has the burden of demonstrating what additional statutory penalties she is subject to that would "reflect a legislative determination that the offense in question is a 'serious' one." (People v Suazo, 32 NY3d at 497 [internal quotation marks and citations omitted].) The People argue that the narrow exception in People v Suazo was based on the Court of Appeals' conclusion that the federal immigration detention process closely resembled criminal incarceration, whereas in this instance the defendant is a United States citizen who is not facing deportation. They contend that while loss of custody is a consequence of defendant's conduct, it does not rise to the level of severity as the extended loss of liberty and forced removal of deportation as in People v Suazo. Further, the People argue that defendant already lost custody of the child, making expansion of People v Suazo irrelevant and akin to a defendant seeking a jury trial after being deported. The People posit that if the holding in People v Suazo were extended, every defendant who is charged in New York City with B misdemeanors would be entitled to a jury trial, contrary to the explicit language of CPL 340.40.

The People's argument has merit. The Court of Appeals decision in People v Suazo was narrowly tailored to situations involving noncitizens at risk of deportation, as was clearly articulated in the decision: "we have no occasion to address—on this appeal involving a noncitizen subject to deportation—{**65 Misc 3d at 994}whether a citizen would likewise be entitled to a jury trial when charged with an otherwise deportable offense." (People v Suazo, 32 NY3d at 506-507.) Indeed, trial courts that have addressed this issue subsequent to People v Suazo have declined to expand its application to cases involving United States citizens, holding that "the right to a jury trial lies within the authority of the New York State Legislature, and not the trial courts." (People v R.A., 62 Misc 3d 688, 690 [Crim Ct, Queens County 2019].)

Further, defendant's argument that the final custody determination relied heavily on the pending criminal action is misplaced. Defendant notably failed to attach this court's entire custody decision and order dated June 11, 2019, to her motion, which cited to multiple instances where the defendant excluded the complainant father from being involved in the child's life, including but not limited to:

• traveling frequently with the child, often for several months at a time, thereby depriving the complainant father of access time;

• admitting to violating a stipulation that required her to provide the complainant father a written itinerary and Skype access to the child while away; and

• enrolling the child in school in the Ukraine without notifying the complainant father. (See custody decision and order dated June 11, 2019, at 19-21.)

In determining custody, this court specifically found the defendant to not be credible and that the complainant father was more likely to encourage a relationship between the defendant and the child. This court's finding that a change of circumstance existed such to warrant a [*3]modification of custody was not solely based on defendant's arrest, but also because of defendant's refusal to comply with the parties' stipulation thereby depriving the complainant father of the ability to be involved in the child's life. The court further found that the defendant's employment and home situation were not as stable as that of the complainant father, and that it is in the best interests of the child to not disrupt the current arrangement given that he has been living with the father for almost 21/2 years and is doing well. (Id. at 20-21.){**65 Misc 3d at 995}

Accordingly, it is hereby ordered that the defendant's motion seeking a jury trial is denied in its entirety; and it is further ordered that any relief not expressly granted herein is denied.