Issue: In this pre-Suazo trial, whether the People’s failure challenge defendant’s allegation that he would face deportation if he was convicted of any of multiple charged class-B misdemeanors barred them from raising that claim on appeal, and whether defendant’s acquittal of all but one of those misdemeanors rendered the jury-trial claim academic, because that single conviction might not make defendant deportable.

Held: Reargument ordered for a future Court session.

CAL observes: Mr. Garcia, a noncitizen, demanded a jury trial because the charged class-B misdemeanors “carrie[d] the potential penalty of deportation” rendering them serious within the meaning of the Sixth Amendment. In this pre-Suazo case, the People opposed the jury-trial request, but not on the grounds that the charges would not make Mr. Garcia deportable. The People made the same argument they made in Suazo: the Sixth Amendment did not entitle defendants —citizens or not—charged with class-B misdemeanors to a jury trial, because the potential punishment was less than six months’ incarceration. The court agreed, concluding that the potential penalty for Sixth Amendment purposes did not include deportation. Suazo squarely rejected that premise.

On appeal, post-Suazo, the People took an entirely different tack, arguing that Mr. Garcia had not been entitled to a jury trial because he had “never met his burden to show that he would be deportable if convicted of the crimes at trial.” The defense contended that that argument was procedurally barred because it was not the basis for the court’s ruling below, and the People did not make it before the trial court, depriving Mr. Garcia of the opportunity to demonstrate to that court that the charged crimes would have made him deportable. Notwithstanding decades of contrary precedent, including from the NYCA, the People argued that they were not bound by preservation rules, because under CPL § 470.05(2), only “the party claiming error” on appeal must preserve arguments. 

Preservation aside, the defense argued that the People were also wrong on the merits, because even the undeveloped  record was sufficient to show that the charged crimes carried the potential penalty of deportation. Mr. Garcia faced trial for an assortment of charges relating to three incidents: public lewdness on the subway platform, and forcible touching and third-degree sexual abuse against one victim on a northbound subway train and against another on a southbound train. Each one of these offenses was a crime involving moral turpitude under federal immigration law subjecting noncitizen defendants to the potential penalty of deportation. A showing that a crime is classified as a crime of moral turpitude alone is enough to establish jury-trial entitlement for a noncitizen. More, because the charges here involved three separate incidents, a conviction arising from any two of those incidents would have mandated Mr. Garcia’s deportation. That Mr. Garcia was ultimately convicted of only the public-lewdness charge does not change this result, because entitlement to a jury trial is measured by the potential penalty defendant faces when the trial begins, not the ultimate penalty imposed.

After a thorough oral argument, the six-Judge Court could not resolve the issues raised. Instead, along with five other Spring Term cases, NYCA ordered reargument at a future term of the Court. If the case is reargued this Fall, there will be two new judges sitting, Judge Singas, who replaced Judge Stein, and Judge Cannataro, who replaced Judge Feinman. Garcia and the other five appeals, two of which were in criminal cases (People v. Wilkins, 175 A.D.3d 867 (4th Dep’t 2019) & People v. Powell, 188 A.D.3d 734 (2d Dep’t 2020). It should provide an early indication of the new judges leanings.