State of New York MEMORANDUM Court of Appeals This memorandum is uncorrected and subject to revision before publication in the New York Reports. No. 17 The People &c., Respondent, v. Cesar Garcia, Appellant Mark W. Zeno, for appellant. David M. Cohn, for respondent. MEMORANDUM: The order of the Appellate Term should be affirmed. Defendant was originally charged with public lewdness, two counts of forcible touching, and two counts of sexual abuse in the third degree after police officers observed him masturbating on a subway platform and pressing himself against two women on a subway car. The People thereafter filed a prosecutor’s information reducing the two class -1- -2- No. 17 A misdemeanor charges of forcible touching to attempted forcible touching, so that the top charges against defendant were Class B misdemeanors obviating his right to a jury trial under state statute (see CPL 340.40).1 After a bench trial, defendant was convicted of public lewdness and acquitted of all other charges. The Appellate Term affirmed the conviction. Applying our holding in People v Suazo (32 NY3d 491 [2018])—decided after defendant’s conviction—the court held that defendant had not met his burden of establishing deportability based on the crimes for which he was tried (63 Misc 3d 158 [A]). While the Appellate Term first improperly conducted the deportability analysis based only on the crime of conviction, that court went on to correctly analyze defendant’s deportability based on all the charges he faced (see Suazo, 32 NY3d at 508). It remained, however, “the defendant’s burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial” (id. at 507). We agree with the Appellate Term that here, defendant’s conclusory allegation that he was deportable if convicted “on any of the charged B misdemeanors,” supported by a bare citation to 8 USC § 1227 (a) (2) (A) (ii), under which an alien is deportable if “convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” was insufficient to establish his right to a jury trial. In Suazo, by contrast, defendant’s assertion that “the possibility of deportation upon conviction rendered the class B misdemeanors sufficiently serious to mandate a jury trial 1 Effective July 1, 2022, CPL 340.40 as amended now extends the right to a jury trial to all defendants charged with a misdemeanor offense in local criminal court (L 2021, ch 806). -2- -3- No. 17 under the Sixth Amendment” met his burden to show deportability because it was clear from the face of the accusatory instrument “that at least one of the charges lodged against him . . . qualified as a deportable offense” (32 NY3d at 494, 508). Our dissenting colleague asserts that defendant’s charges “required no greater analysis or piecing together of federal law than that in Suazo” (dissenting op at 9). But the insufficiency of defendant’s assertion is quite ably demonstrated by the dissent’s “cursory review” of this issue, which spans pages …
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