People v. SuazoPeople v. Suazo
People v Suazo (
| People v Suazo |
| November 27, 2018 |
| Stein, J. |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, March 13, 2019 |
[*1]
| The People of the State of New York, Respondent, v Saylor Suazo, Appellant. |
Argued October 10, 2018; decided November 27, 2018
People v Suazo,
The Sixth Amendment of the United States Constitution guarantees that a defendant will be judged by a jury of peers if charged with a serious crime. Today, as a matter of first impression, we hold that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation—i.e. removal from the country—is entitled to a jury trial under the Sixth Amendment.{**
Defendant Saylor Suazo was charged with assault in the third degree, unlawful imprisonment in the second degree, criminal obstruction of breathing or blood circulation, endangering the welfare of a child, menacing, and harassment in the second degree. As detailed in the accusatory instrument, the charges arose from an incident during which defendant grabbed the mother of his children, threw her to the floor, placed his hands around her neck and squeezed—thereby obstructing her breathing—and then struck her numerous times in the head and neck with his fist. A month later, defendant was also charged with criminal contempt in the second degree due to his violations of an order of protection that directed him to refrain from any communication or contact with the victim.
[*2]Immediately before the start of trial on the consolidated charges, the People moved, in open court, to reduce the class A misdemeanor charges to attempt crimes. As reduced, the charges against defendant constituted class B misdemeanor crimes and lower grade offenses, with the misdemeanors punishable by a maximum authorized sentence of three months in jail; consequently, as the criminal action was commenced in New York City, the offenses were triable without a jury pursuant to CPL 340.40. Supreme Court refused to entertain defendant's argument in opposition to the reduction, granted the People's motion, and commenced the bench trial.
Defendant persisted and submitted a written motion asserting his right to a jury trial. In support of his motion, defendant asserted that he was a noncitizen charged with deportable offenses, and he argued that the possibility of deportation upon conviction rendered the class B misdemeanors sufficiently serious to mandate a jury trial under the Sixth Amendment. The People did not dispute defendant's assertions that he was a noncitizen or that the charges against him included deportable offenses. Instead, the People opposed defendant's motion on the sole ground that deportation is a collateral consequence arising out of federаl law that does not constitute a criminal penalty for purposes of the Sixth Amendment right to a jury trial.
Supreme Court effectively denied defendant's motion and, following a bench trial, found defendant guilty of attempted assault in the third degree, attempted criminal obstruction of{**
The Sixth Amendment of the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." This constitutional guarantee of the right to a jury trial "reflect[s] a profound judgment about the way in which law should be enforced and justice administered" (Duncan v Louisiana,
Although the Federal Constitution speaks in absolute terms, it is well settled that the right to a jury trial "does not extend to every criminal proceeding" (District of Columbia v Clawans,
As explained by the United States Supreme Court, to determine whether an offense is serious or petty, "courts at one time looked to the nature of the offense and whether it was triable{**
Consistent with the Supreme Court's instruction that the maximum potential penalty for a particular offense must be the crux of the analysis as to whether a right to a jury trial exists, significant attention has been paid to the maximum length of incarceration associated with the crime in question. In that regard, the Supreme Court has articulated at least one clear rule based on the potential length of incarceration—namely, "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized" (Baldwin,
Despite the significance placed on the maximum authorized length of incarceration, the Supreme Court has clarified that the term "penalty," as relevant to the Sixth Amendment jury trial analysis, "do[es] not refer solely to the maximum prison term authorized for a particular offense" (Blanton,
To be sure, primary emphasis remains on the maximum authorized period of incarceration; this is because, although other "[p]enalties such as probation or a fine may engendеr a significant infringement of personal freedom, . . . they cannot approximate in severity the loss of liberty that a prison term entails" (Blanton,
In New York, CPL 340.40 requires that the trial of an information in a local criminal court be a single judge (i.e., nonjury) trial (see CPL 340.40 [1]), unless the information charges any{**
Defendant argues that, although the Sixth Amendment right to a jury trial did not automatically attach to the crimes with which he was charged because they are punishable by less than a six-month term of incarceration, he met his burden of establishing that the crimes carry an additional penalty beyond incarceration—namely, deportation—which he contends is a sufficiently severe penalty to rebut the presumption that the crimes are petty for Sixth Amendment purposes. We agree.
Under the Immigration and Nationality Act (INA), a noncitizen may be deported, or forcibly removed from the country, if convicted of a variety of crimes, including a "crime of moral turpitude" under certain conditions, an "aggravated felony," mоst controlled substance offenses, various firearm offenses, "[c]rimes of domestic violence, stalking, or violation of [a] protection order, [and] crimes against children" (8 USC § 1227 [a] [2] [A]-[F]). In the event of a noncitizen's conviction of such an offense, "removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses" (Padilla v Kentucky,
There can be no serious dispute that, if deemed a penalty for Sixth Amendment purposes, deportation or removal is a penalty of the utmost severity. The deportation process generally involves detention by federal immigration authorities until administrative or judicial review prompts either the detainee's release or an adjudication that the detainee is deportable. Detention—which closely resembles criminal incarceration—may last several days, or it may last months or years (see People v Peque,
In light of the gravity of deportation, the United States Supreme Court has characterized it as a "drastic measure" (Padilla,
Notably, this Court also recently recognized the profound significance of deportation as a consequence of a criminal conviction (see Peque,
"the deportation process deprives the defendant of an exceptional degree of physical liberty by first detaining and then forcibly removing the defendant from the country. Consequently, the defendant may not only lose the blessings of liberty associated with residence in the United States, but may also suffer the emotional and financial hardships of separation from work, home and family. Given the severity and inevitability of deportation for many noncitizen defendants, 'deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizеn defendants' " (id. at 192, quoting Padilla,559 US at 364 ).
Ultimately, the devastating loss that may be occasioned by forced removal is a "loss . . . so great as to be unquantifiable" (Bado v United States, 186 A3d 1243, 1251 [DC 2018]). There can be little doubt that deportation is a sufficiently severe penalty to puncture the six-month demarcation between serious and petty offenses because the loss of liberty associated therewith is analogous to that inherent in incarceration and because deportation—which may result in indefinite expulsion from the country and isolation from one's family—is frequently more injurious to noncitizen defendants than six months or less of imprisonment.{**
The People argue that, notwithstanding the profound impact of deportation, removal from the country is not a criminal penalty of a conviction, but merely a civil collateral consequence, which should not be considered a penalty for Sixth Amendment purposes. The People further assert that, in any event, deportation cannot obligate a New York court to furnish a jury trial to a defendant charged with a class B misdemeanor crime because it is a consequence imposed as a matter of federal law and, therefore, does not reflect the New York State Legislature's judgment concerning the seriousness of an offense. We address these arguments in turn.
Although the People are correct that deportation—a federally imposed penalty—is technically a civil collateral consequence of a state conviction (see Padilla,
As we recently observed, following amendments to federal immigration law in 1996, "the federal government deported an ever-growing number of individuals each year" (Peque,
Ultimately, even if deportation is technically collateral, it is undoubtedly a severe statutory penalty that flows from the federal government as the result of a state criminal conviction. Indeed, we have characterized it as a "substantial and unique consequence" (Peque,
In the jury trial context, the Supreme Court has never proclaimed a rule precluding statutory penalties from triggering the mandate of the Sixth Amendment right to a jury trial based on their collateral nature. Indeed, in Blanton v North Las Vegas, the Supreme Court considered at least one consequence of a conviction that could be classified as collateral (
Turning to the People's next contention, we also conclude that it is not fatal to defendant's claim that the penalty of deportation or removal from the country is imposed as a matter of federal, rather than state, law. The salient fact is that a legislative body authorized to attach a penalty to a state conviction has determined that the crime warrants the onerous penalty of deportation. That New York State could neither designate nor effectuate this specific penalty does not make it any less onerous. Ultimately, the penalty of deportation reflects society's view that the misconduct underlying the conviction is of the type that violates social norms of proper behavior and stirs community outrage to such an extreme extent that it provides a basis for the convicted person to be exiled from home, family, community, and country. Congress, as the national elected legislative body, is constitutionally authorized to enact our nation's immigration laws and, by virtue of that federal power, it alone decides which federal and state criminal law convictions will carry the additional severe penalty of deportation (US Const, art
I, § 8). It is that legislative determination that is dispositive to the analysis here. Just as a nationwide consensus was relevant to the Supreme Court's adoption of the six-month incarceration rule, the nation's determination to impose deportation upon certain convicted noncitizens—reflected in the only way it can be, through laws passed by Congress—is the sole "objective [*6]criterion" by which to measure the seriousness of a penalty of federal nationwide application (see Blanton,
To be sure, the Supreme Court has often referred in its Sixth Amendment jurisprudence to the view of the local state legislature regarding the seriousness of a crime as being reflected in the penalties imposed by that legislature (see e.g. Duncan,
Moreover, while the Supreme Court has explained that courts need not look to how other states classify their crimes—as either petty or serious—when undertaking a Sixth Amendment analysis (see Nachtigal,
Here, we are considering the federally-imposed penalty of deportation, which both this Court and the Supreme Court have recognized is a penalty that is often a "virtually inevitable" (Padilla,
The People's remaining arguments are also unavailing. To the extent the People contend that the Sixth Amendment does not permit a distinction between the right to a jury trial for citizens and noncitizens, we have no occasion to address—on this appeal involving a noncitizen subject to deportation—whether a citizen would likewise be entitled to a jury trial{**
In addition, we recognize that our holding today will obligate New York courts, in the narrow context of cases involving CPL 340.40-mandated nonjury trials of lesser misdemeanors in New York City, to determine the potential immigration consequences associated with pending charges, and we are mindful of the People's concerns regarding the practicalities of litigating a defendant's immigration status.[FN9] In this regard, we emphasize that it is the defendant's burden to overcome the presumptiоn that the crime charged is petty and establish a Sixth Amendment right to a jury trial (see Blanton,
{**
Here, defendant asserted that the crimes with which he was charged included deportable offenses and that, as a noncitizen, a resulting conviction would render him deportable. The People did not challenge either of these assertions.[FN11] Defendant is correct that at least one of the charges lodged against him—criminal obstruction of breathing or blood circulation (see Penal Law § 121.11)—qualified as a deportable offense. A "crime of domestic violence" includes "any crime of violence" against, as relevant here, "an individual with whom the person shares a child in common" (8 USC § 1227 [a] [2] [E] [i]). There is sufficient authority from which we may conclude that criminal obstruction of breathing or blood circulation is a crime of violence as it categorically "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" (18 USC § 16 [a]; see Penal Law § 121.11; Johnson v United States,
Garcia, J. (dissenting). In my view, the possibility that conviction may lead to deportation does not transform an otherwise "petty" offense into a "serious" one for purposes of the right to a jury trial under the Sixth Amendment. Federal immigration law should not override the New York State Legislature's view of the seriousness of the charged offense, as expressed by the maximum penalty authorized. Accordingly, I respectfully dissent.
As the majority makes clear, the "right to a jury trial does not extend to every criminal proceeding" (see majority op at
495 [internal quotation marks omitted]). The Sixth Amendment distinguishes between "serious" and "petty" offenses (see Baldwin v New York,
That presumption can be overcome, however, in the "rare situation" when "additional statutory penalties" are "so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one" (Blanton v North Las Vegas
In my view, the analysis should focus on the penalties imposed by the New York State Legislature for the specific offense at issue. The majority justifies going beyond state borders by characterizing the Supreme Court's analysis as looking to government-imposed penalties, regardless of which sovereign imposes them (majority op at 504). Although "nongovernmental" consequences are excluded by the Supreme Court's precedent, penalties resulting from "state action"—in this case, the risk of a future federal collateral consequence—must be considered (id. at 505 n 5 [internal quotation marks omitted]). I disagree.
While it is true the Supreme Court has not considered federal collateral consequenсes in the context of the right to a jury trial (id. at
504), the cases have consistently emphasized the role of the local legislature in determining the seriousness of the particular offense at issue. Under the Court's precedent, "[a]n offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious" (Lewis v United States,
The majority acknowledges that not looking at how other states classify similar crimes is "eminently rational" (majority op at
505). Congress is, however, different: "[t]he salient fact is that a legislative body authorizеd to attach a penalty to a state conviction has determined that the crime warrants the onerous penalty of deportation" (majority op at
504). In addition to being at odds with basic principles of federalism (see infra section IV), it also strains credulity. Does every "violation of . . . any law . . . relating to a controlled substance" (8 USC § 1227 [a] [2] [B] [i])—deportable under federal immigration laws—in fact {**
Recognizing this, most state courts have declined to consider federal consequences in the penalty analysis. As one state court put it, "the existence of a federal statute says nothing about how the [state] Legislature views the offense" (State v Race,
Relying on language about the severity of deportation from the Supreme Court's decision in Padilla v Kentucky (
Padilla and Peque—both focusing on what information must be given to a defendant prior to entry of a knowing and intelligent{**
Peque's due process analysis similarly focused on information required by the specific defendant. In Peque, a majority of this Court held that "deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness" (
The penalty analysis with respect to a right to a jury trial is quite different. Rather than focus on the defendant's knowledge of the consequences of waiving a constitutional right, the{**
Even before Blanton, this Court recognized the dangers of "a subjective standard" tied to individual defendants (Matter of Morgenthau v Erlbaum,
Further proof of the inapplicability of the Padilla analysis to the penalty analysis lies in the remedy. In Padilla, recognizing{**
The majority's subjective rule will likely prove unworkable. In the present case, although not raised before the trial court when it denied a jury trial, the defendant appears to be a visa overstay, making him deportable (see majority op at 508 n 11). Is the enhanced "penalty" under the majority's rule the difference in the conditions that attach for removal after conviction?[FN3] Does the bar on application for reentry make a crime "serious" for a defendant who is otherwise deportablе? These questions are largely left unanswered. Perhaps they are unanswerable. In any [*11]event, they need not be addressed under the Supreme Court's analysis that remains fixed on the state legislature's view of the seriousness of the crime charged.
Finally, using Padilla and Peque to expand the penalty framework to include potential consequences under federal immigration law is an approach that will have far-reaching effects. The majority finds this concern "overstated," while at the same time making clear that we leave for another day the determination as to which federal consequences are "sufficiently severe" to compel a jury trial for class B misdemeanors in New York City (majority op at
506 n 7). Future courts will be left to{**
Allowing federal immigration law to override the intention of New York Legislature raises several other troubling issues. The "petty" offense excеption is deeply rooted in our legal tradition. "[F]or centuries past . . . justices of the peace" have been allowed to try "minor and statutory police offenses"—what we now commonly refer to as "minor or petty offenses" (Callan v Wilson,
The Supreme Court has grounded the modern "petty" offense exception in such concerns. Flowing from historical practice, the exception preserves "benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications" (Duncan,
New York has made a similar calculation. As we have recognized, the standard set in CPL 340.40 is tied directly to the concerns the "petty" offense exception is designed to address: "[e]specially in New York City, with its high volume of misdemeanor cases, [CPL 340.40] furthers the important public interest of effective judicial administration" (People v Urbaez,
The majority is forthright in its view that Congress' "legislative determination
. . . is dispositive to the analysis here" (majority op at 504). Put another way, the majority has explicitly designated Congress as the relevant authority for purposes of determining when a jury trial is warranted for a New York crime. Yet "the Constitution has never [*12]been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions" (New York v United States,
Today's decision, unfortunately, violates this basic constitutional directive. No action by the state legislature can change the effects of federal immigration law. No reduction in penalties imposed by the State can counteract that federal "determination." Moreover, any change wrought by Congress in the immigration law will directly affect a defendant's right to a jury trial in New York. Adding to, or deleting from, the list of deportable offenses will now be tantamount to a decision by Congress on the "seriousness" of that crime for Sixth Amendment purposes.
There is now a split in terms of how the Sixth Amendment right to jury should be understood (see supra at 510-511), opening the door to further litigation, in both state and federal courts, over exactly which collateral consequences may make an otherwise "petty" offense "serious." It is doubtful that importing federal immigration law into the penalty analysis was something the Supreme Court intended when it made the Sixth Amendment right to trial by jury for "serious" offenses applicable to the states. In the end, the Supreme Court has the ultimate authority to settle this issue. For the reasons set forth above, it should do so.
I respectfully dissent.
Wilson, J. (dissenting). The majority's opinion proceeds on the following seven steps: (1) the Sixth Amendment to the United States Constitution guarantees a jury trial for all offenses that are "serious" rather than "petty"; (2) "seriousness" is measured by the severity of the penalty associated with the offense; (3) the penalty to be considered is not limited to the term of incarсeration, but encompasses other governmentally-imposed consequences; (4) deportation is such a penalty; (5) deportation is severe; (6) even though deportation is technically civil, it is difficult to classify as civil or criminal; and (7) even though the penalty of deportation is imposed by the federal government, not the state government under whose laws the defendant is being prosecuted, it is nevertheless equally cognizable.{**
[*13]That construct ignores or obscures one insuperable problem: the penalty for violation of United States immigration laws includes deportation, and deportation proceedings have never been deemed to entitle a noncitizen to anything more than an administrative hearing—certainly not a jury trial. Thus, under the majority's decision, an undocumented alien may be deported by an administrative proceeding in front of an immigration judge, who is an employee of the Department of Justice, but if that same undocumented alien commits an act of domestic violence, the prospect that an immigration judge will subsequently deport him entitles him to a jury trial. Put differently, if the severity of deportation entitles one to a jury trial under the Sixth Amendment, the entire federal system of removal of undocumented aliens is unconstitutional. If so, more than a century of United States Supreme Court decisions must be discarded. A certain Court can so hold, just not this one.
In Fong Yue Ting v United States, the Court concluded: "the provisions of the Constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures, and cruel and unusual punishments, have no application" to proceedings to exclude or expel noncitizens (
I do not dispute that deportation is extraordinarily severe, particularly for persons who have built a life in this country. Some have families here, some came here themselves as children, and know nowhere else. Indeed, dissenters in the controlling Supreme Court cases have sometimes noted that severity as a reason to question the prevailing doctrine,[FN1] and commentators have suggested that Padilla may be a sign that the Supreme Court will [*14]abandon or substantially modify that doctrine.[FN2] But if the severity of deportation itself is sufficient to trigger the Sixth Amendment's right to a jury trial, I see no principled distinction to allow deportation proceedings themselves to occur outside of article III courts with the full panoply of constitutional rights attendant thereto. That is not the state of federal law today; it has been to the contrary for well over a century. We are bound to follow the United States Supreme Court's interpretation of the Sixth Amendment, which holds that despite its severity, deportation does not activate the Sixth Amendment's right to a jury trial.{**
One further item bears mention. The problem created by this case arises from the peculiar statute governing the right to a jury trial in B misdemeanors, found in CPL 340.40 (2). All persons in New York State are entitled to a jury trial if charged with a B misdemeanor, unless they reside in New York City, in which case they have no such right. Were the legislature to extend that right to all New Yorkers, the problems underlying this issue would vanish.
Accordingly, I dissent.
Chief Judge DiFiore and Judges Rivera, Fahey and Feinman concur; Judge Garcia dissents and votes to affirm in an opinion; Judge Wilson dissents in a separate dissenting opinion.
Order reversed and a new trial ordered.
Footnote 1:There is no claim raised here that this statutory distinction violates the New York Constitution, which guarantees that "[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever" (NY Const, art I, § 2), but otherwise permits the legislature to "authorize any court which shall have jurisdiction over crimes and other violations of law, other than crimes prosecuted by indictment, to try such matters without a jury" (NY Const, art VI, § 18 [a]). Nor does defendant raise any challenge to CPL 340.40 based on its differential treatment of defendants depending upon the location of their prosecution.
Footnote 2:That discretion is codified in 8 USC § 1229b, which provides that "[t]he Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien" has been in the country continuously for at least 10 years, is of good moral character, has not been convicted of certain crimes—including those crimes which render an alien deportable under 8 USC § 1227 (a) (2)—and, the alien establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's immediate family lawfully residing in the country (8 USC § 1229b [b] [1]).
Footnote 3:To reiterate what we have explained in the context of pleas, direct consequences of a conviction are those that have "definite, immediate[,] and largely automatic effect on [the] defendant's punishment" (People v Peque,
Footnote 4:We are unconvinced that the civil nature of deportation proceedings compels us to exclude it from the Sixth Amendment analysis—in a criminal prosecution—of penalties imposed upon conviction, particularly in light of the recognition by both this Court and the Supreme Court that the penalty of deportation is inextricably intertwined with the criminal justice process and that, in many instances, it necessarily flows from a criminal conviction. The Sixth Amendment jury trial right attaches where the charges will potentially result in a criminal conviction that carries statutory penalties warranting jury trial protection; this is not altered by the fact that deportation itself will be effectuated through a subsequent administrative proceeding. Nor does it follow from our analysis that the Sixth Amendment right to a jury trial for criminal prosecutions must be extended to civil immigration proceedings (see e.g. Padilla v Kentucky,
Footnote 5:Similarly, the Supreme Court's caution in Blanton that "only penalties resulting from state action, e.g., those mandated by statute or regulation, should be considered" for Sixth Amendment jury trial purposes does not signify that federal consequences must be excluded from the analysis (
Footnote 6:We note that nothing in the language of the CPL or its history evinces a New York legislative determination that deportation is not a serious penalty. Indeed, this is unsurprising since deportation is a penalty that the New York State Legislature has no authority to impose as part of a state conviction.
Footnote 7:A federally-imposed penalty will preclude the state legislature from denying a defendant the right to a jury trial only where the penalty in question invariably flows from a state conviction. A state need not award a defendant a jury trial where the resulting penalties warrant treating the crime as a petty offense, even if the federal government imposes a more severe penalty for an analogous crime in federal prosecutions, which penalty will not be imposed on state defendants. Further, as previously noted, this Court, itself, already has recognized that deportation is inextricably intertwined with the state criminal justice process, and that it is a unique and extraordinarily severe penalty of a state criminal conviction (see Peque,
Footnote 8:Contrary to our dissenting colleague's suggestion (see Garcia, J., dissenting op at 512-513) consideration of deportation as a penalty for Sixth Amendment purposes maintains the proper objective—rather than subjective—focus on the relevant legislatures' views of the particular offense as being either petty or serious based on the maximum authorized penalty for that particular offense. In that respect, inclusion of deportation in the right to a jury trial analysis is plainly distinguishable from consideration of the aggregate prison term facing a defendant who is charged with multiple petty offenses, as "[t]he fact that [a defendant] was charged with [more than one] count[ ] of a petty offense does not revise the legislative judgment as to the gravity of that particular offense" (Lewis v United States,
Footnote 9:We note that federal immigration authorities are statutorily obligated to respond to requests by state officials to verify or ascertain an individual's citizenship or immigration status (see 8 USC § 1373 [c]; Arizona v United States,
Footnote 10:Although defense attorneys may caution clients against revealing their immigration status in court, it is a defendant's choice whether to do so in support of an application for a jury trial.
Footnote 11:The People claim that it was subsequently discovered that defendant was deportable, notwithstanding his conviction, due to his unlawful entry into the country. However, the trial court was unaware of this when it denied defendant's motion for a jury trial, and it was not a basis of that court's decision (see People v LaFontaine,
Footnote 1:The majority justifies its departure, in part, by "not[ing] that nothing in the language of the CPL or its history evinces a New York legislative determination that deportation is not a serious penalty" (majority op at 506 n 6 [emphasis omitted]). But, in Erlbaum, we said that "the Legislature must be presumed to have weighed public opinion and history, and to have been aware of the civil implications of conviction" (
Footnote 2:As the majority makes clear, if you call Immigration and Customs Enforcement, they will certainly respond.
Footnote 3:The Bado court noted the "harsher substantive and procedural requirements" that apply when deportation is based upon criminal conviction versus " 'regulatory' deportations, such as when a person is out of status" (186 A3d at 1254 and n 22).
Footnote 1:See e.g. Fong Yue Ting,
Footnote 2:See e.g. Anita Ortiz Maddali, Padilla v. Kentucky: A New Chapter in Supreme Court Jurisprudence on Whether Deportation Constitutes Punishment for Lawful Permanent Residents?, 61 Am U L Rev 1 (Oct. 2011); Peter L. Markowitz, Deportation Is Different, 13 U Pa J Const L 1299 (June 2011).