Issue: Whether a noncitizen establishes entitlement to a jury trial under People v. Suazo, 32 N.Y.3d 491, 493 (2018) where he alleges that he would face deportation if convicted of a several charged class-B misdemeanors, where the People do not challenge that allegation.

Held: A defendant’s allegation that he was deportable if convicted “on any of the charged B misdemeanors” is insufficient to establish entitlement to a jury trial, even if that conclusion is not challenged by the People.

CAL Observes: A majority of the Court held that, to establish entitlement to a jury trial, a defendant must do more than allege that he may be deported, and cite the provisions of the immigration law upon which that conclusion rests, to show the Sixth Amendment requires a jury trial. Had this point been made by the prosecutor in response to Mr. Garcia’s motion for a jury trial, this would not have been a controversial proposition, particularly because CPL § 340.40(2) has been amended to eliminate the differential treatment of those accused of committing class-B misdemeanors in New York City. 2021 Sess. Law News of NY Ch. 806 (A. 4319). Effective July 1, 2022, persons charged with any criminal offense—including class-B misdemeanors—are entitled to a jury trials statewide. Id.

Here, however, the People did not challenge the adequacy of Mr. Garcia’s allegations until raised on appeal. For that reason, Mr. Garcia had no reason to supplement his allegations before the trial judge. Yet, eliding the People’s failure to preserve this challenge, the majority essentially concludes that, because Mr. Garcia might not have been able to show he was deportable based on the charged offenses, the People’s failure to timely lodge that challenge was harmless. In dissent, Judge Wilson methodically shows how the majority’s decision is inconsistent with existing law requiring preservation for both parties.

If there is a positive that can be taken from this decision, it is that the majority and dissent agreed with Mr. Garcia that his entitlement to a jury trial was measured by the charges he faced at trial, not solely those for which he was later convicted.

Apart from the Court’s ultimate holding, this appeal may be more interesting for its identification of the new members of the court’s inclination on issues in criminal cases. The appeal was originally argued in 2021 before a six-judge panel of the Court following Judge Feinman’s departure from the Court. At that time, the Court was unable to reach a decision, presumably because its members were split three to three. Reargued in May, after the departure of Judges Stein and Fahey, the Court split 5 to 3, with the new Judges, Cannataro, Singas, & Troutman all joining Chief Judge DiFiore in affirming the conviction.