After I had denied defendant's motion to suppress the evidence in this case,*fn1 I asked his counsel whether he wished to proceed to trial before a single Judge or a panel of three Judges.*fn2 His answer was in effect: "Neither. Defendant demands, and moves, that he be tried by a jury, as permitted under the recent Duncan case [ Duncan v. Louisiana, 391 U.S. 145] in the United States Supreme Court". What I now must decide is, shall there by a jury trial here, in view of the explicit statutory fiat that "All trials in the court shall be without a jury".*fn2
Defendant has been charged with criminal (knowing and unlawful) possession of a dangerous drug in the fourth degree.*fn3 The Legislature has assessed that kind of act as the highest type of crime below a felony -- a class A misdemeanor. Upon a class A conviction a defendant may be imprisoned for one year*fn4 and may be subjected to pay a fine of $1,000.*fn5
If the defendant had been accused of having committed the same unlawful act elsewhere in this State than the City of New York, the granting of his demand and motion for a trial by jury would be impelled (Code Crim. Pro., § 702.)*fn6 But to this very day no Special Sessions court has granted a jury trial of a misdemeanor within the City of New York.*fn7 There is an unbroken consistency to these holdings.*fn8 And although the defendant in People v. Kaminsky (208 N. Y. 389) (the leading case) argued that he had "been deprived of his liberty without due process of law and denied the equal protection of the law, contrary to section 1 of the 14th amendment of the United States Constitution",*fn9 the court, stating (p 394) that "the character of the offense is determined by the nature of the punishment rather than by its supposed moral turpitude", held that there was no deprivation "of the constitutional right of trial by jury". The New York Constitution, it said, "expressly provides that Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as shall be prescribed by law" (p. 394). This has meant, traditionally, trials without juries. (See, also, People v. Harding, 115 Misc. 298, 301.)*fn10
Five years after Kaminsky (supra), this Department reviewed the long-continuing limited jurisdiction of the Court of Special Sessions,*fn11 pointing out the intrastate legislative discrimination from its beginning in 1744 and concluding: "This historical review of the legislation affecting Courts of Special Sessions demonstrates that from their first establishment to this day such courts in the city and county of New York differed from those held in other counties in the persons designated to hold the court, in jurisdiction of offenses and in power to sentence on conviction; that laws specially applicable to each have been enacted, but never has the jurisdiction to hear, determine and pronounce judgment of either been limited or controlled by reference to the laws applicable to the other." (People ex rel. Dembinsky v. Fox, 182 App. Div. 642, 648 .)
That has been, and is currently, the New York courts' persistent legal view of a defendant's jury trial rights, constitutionally, in a Special Sessions court. As recently as July 29, 1968 a Kings County Supreme Court Justice stated: " Kaminsky has never been overruled and, indeed, has never been questioned until the very recent decision in Duncan " (People v. Morganbesser, 57 Misc. 2d 678, 679; same case, N. Y. L. J., Aug. 20, 1968, p. 11, col. 8).*fn12
These are days for questioning, however. Advances in legal concept follow from changing approaches to the social values -- the mores -- of the people. The law, fortunately, is able to attune itself appropriately to the socio-economic needs, the goals and horizons of the people as they currently change. Flexible standards are desirable -- indeed eminently required -- in matters involving the conduct of humans, in which area rigid mechanical rules must bend to the varied needs of human lives and freedoms.
As Judge Cardozo said in his Yale lecture series "The Growth of the Law", specifically in "The Function and the Ends of Law": "The apportionment of relative value of certainty on one side and justice on the other, of adherence to logic and advancement of utility, involves an appraisement of the social interest which each is capable of promoting. That is a calculus which has not yet been definitively made by any master of juristic theory" (p. 83). And further, stated Judge Cardozo, quoting from Justice Stone's writings when the latter was Dean at Columbia: "'the choice of the particular device determining the result -- social utility -- the mores of the times, objectively determined, may properly turn the scale in favor of the one against the other.' If classification were ever to become complete for any time and place, there is little chance that it could be final. The good of one generation is not always the good of a successor.*fn13 * * * In the present state of our knowledge, the estimate of comparative value of one social interest and another, when they come, two or more of them, into collision, will be shaped for the judge, as it is for the legislator, in accordance with an act of judgment in which many elements cooperate. It will be shaped by his experience of life; his understanding of prevailing canons of justice and morality; his study of the social sciences; at times, in the end, by his intuitions, his guesses, even his ignorance or prejudice." (pp. 85-87.)
All of this, of course, must be circumscribed by the restrictions which are placed upon him by his oath of impartiality in the application of law. He cannot pervert a statute because he disagrees with it. He cannot be knowingly subjective in appraisals of legislative values. He must accustom his own ideas to the thought and will of the community as reflected by its highest judicial and legislative segments.
For rigidity in the application of legal principles, as an end in itself, is intolerable in a changing world. The closed eyes of the figure of Justice should not be mistaken for blindness -- the inability to see what is happening around her. Instead, the blindfold should symbolically evince an inner sight -- to change the balance of her scales as community problems demand that different weight be given to newly arising questions. To be effective the interpretation and application of the law must be elastic and viable. New approaches to rights and duties should always govern judicial decision.
And so we arrive at Duncan v. Louisiana (391 U.S. 145, supra). No one in Louisiana at that time could have had a jury trial unless the punishment, on conviction, was "at hard labor". Duncan was charged with simple battery which is a misdemeanor punishable by two years' imprisonment and a $300 fine. He sought a jury trial. His application was denied. He was convicted and sentenced to serve 60 days and pay a fine of $150. Appeals followed.
"The question", the Supreme Court said, "is whether a crime carrying such a penalty is an offense which Louisiana may insist on trying without a jury." And it answered the question unequivocally: "We think not" (p. 160). The reasoning behind this conclusion is two-fold:
1: "Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which -- were they to be tried in a federal court -- would come within the Sixth Amendment's guarantee. Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant's demand for a jury trial was refused" (pp. 149-150).*fn14
2: "Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses, Cheff v. Schnackenberg, 384 U.S. 373 (1966). But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment. District of Columbia v. Clawans, 300 U.S. 617 (1937). The penalty authorized by the law of the ...