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SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY 1968.NY.44106 <>; 296 N.Y.S.2d 584; 58 Misc. 2d 585 December 30, 1968 IN THE MATTER OF FRANK S. HOGAN, AS DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK, PETITIONER,v.JACK ROSENBERG ET AL., RESPONDENTS Frank S. Hogan, District Attorney (Michael R. Juvilier and Lewis R. Friedman of counsel), petitioner in person. Harold Rothwax, Michael B. Rosen and Martin A. Schwartz for Marvin Puryear, respondent. Anthony F. Marra for Leroy Bowman, respondent. Louis J. Lefkowitz, Attorney-General (Samuel A. Hershowitz and Maria L. Marcus of counsel), petitioner-intervenor. Saul S. Streit, J. Author: Streit

Saul S. Streit, J.

Author: Streit

 Pursuant to article 78 of the CPLR, petitioner, the District Attorney of New York County, seeks to enjoin and prohibit the respondent Judge and Judges of the Criminal Court of the City of New York from conducting a jury trial in the criminal cases now pending in such court against respondents Bowman and Puryear.

It appears from the papers before the court that on April 10, 1968, Bowman and Puryear, 18 and 19 years old, respectively, were arrested and arraigned in Criminal Court on charges of possession of burglar's tools (Penal Law, § 140.35), a Class A misdemeanor, and criminal trespass in the third degree (Penal Law, § 140.05), a violation. After a preliminary hearing was held before Hon. Jack Rosenberg, a named respondent herein, a motion by the prosecution to add the charge of criminal trespass in the first degree (Penal Law, § 140.15), another Class A misdemeanor, was granted.

Thereafter, on September 9, 1968, Judge Rosenberg granted Bowman's and Puryear's motion for a jury trial, citing the recent decision of the United States Supreme Court in Duncan v. Louisiana (391 U.S. 145), as mandating such ruling. Petitioner now argues, however, that the determination of Judge Rosenberg is contrary to law. He notes that section 40 of the New York City Criminal Court Act, which governs the pending proceedings against Bowman and Puryear in the Criminal Court, expressly precludes a trial by jury. He further asserts there is no authority for the Criminal Court of the City of New York to conduct a jury trial on any issue (citing N. Y. City Crim. Ct. Act, § 33). Prior to discussing the substantive merits of the arguments advanced by the respective parties here involved, it is first necessary to dispose of various procedural issues raised by them. Respondents Bowman and Puryear contend, in substance, that the District Attorney may not avail himself of the relief afforded by an article 78 proceeding (in the nature of a writ of prohibition). I do not agree, for it is well-settled law that an article 78 review is the appropriate means to prevent a court from usurping, exceeding or abusing its authorized powers and jurisdiction (see Matter of Murtagh v. Leibowitz, 303 N. Y. 311; Matter of Hogan v. Court of General Sessions, 296 N. Y. 1, 8; Matter of United States of Mexico v. Schmuck, 294 N. Y. 265, 274; Matter of City of New York v. Maltbie, 248 App. Div. 36, 38, affd. 274 N. Y. 464). Moreover, it is significant and fundamental that if a jury trial were held, as ordered by Judge Rosenberg (supra), neither petitioner nor the People of the State of New York whom he represents, could appeal from the resulting judgment. Similarly, an appeal does not lie from Judge Rosenberg's order itself. Thus, the remedy sought herein is particularly appropriate when it is obvious that no other legal procedure is available to petitioner to prevent what, in his opinion, is an abuse of power (Matter of Hogan v. Court of General Sessions, supra, p. 9).

Petitioner and the Attorney-General of the State of New York, as petitioner-intervenor, stress the fact that New York law which denies a jury trial for Class A misdemeanors has previously been held to be constitutional (citing People v. De Cillis, 14 N.Y.2d 203 [1964], and People v. McConner, N. Y. L. J., Dec. 11, 1968, p. 16, col. 8 [App. Term, 2d Jud. Dist.]; see, also, People v. Kaminsky, 208 N. Y. 389). They urge, therefore, that a decision, as a matter of judicial policy, to apply the doctrine of the Duncan case so as to require trial by jury in the respondent court, should be made by the Court of Appeals of this State rather than here at a lower trial level.

I recognize the validity of the reasoning behind such argument and while I am also aware of a similar admonition by the Court of Appeals (see People v. Reed, 276 N. Y. 5), nevertheless, the very nature of the application by petitioner compels this court, at nisi prius, to determine all of the issues raised by the pleadings in light of the present and controlling law, including those which may, directly or indirectly, affect the constitutionality of various provisions of our criminal laws. While I may be constrained to strike down a statute heretofore held to be constitutional by the Court of Appeals of this State, nevertheless, if a determination of the highest judicial tribunal of the country, the Supreme Court of the United States, clearly mandates such result, it would leave me no alternative.

In this respect, I am mindful that the underlying problem of distinguishing between "serious" and "petty" crimes, undoubtedly, would be best resolved in the legislative arena rather than by judicial fiat. However, as succinctly stated by Mr. Justice White in Duncan (supra, p. 160): "In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance ". (Emphasis added.)

Thus, inasmuch as the Legislature of this State has not spoken since the recent edict of the United States Supreme Court in Duncan (supra) and in the companion case of Bloom v. Illinois (391 U.S. 194), decided on the same day (May 20, 1968), I deem it encumbent upon this court, at this time, to pass upon the critical constitutional issue raised by the instant application, particularly where, as here, these controlling decisions compel the result arrived at herein (infra).

As will hereinafter be discussed in detail, Bowman and Puryear contend that they both face the possibility of lengthy reformatory sentences, pursuant to the provisions of article 75 of the Penal Law. Petitioner-intervenor asserts that such issue is raised prematurely here. The Attorney-General argues that this "reformatory sentence" article of the Penal Law (§ 75.00 et seq.) only becomes a justiciable issue after it has actually been utilized by the sentencing Judge.

I would be in complete accord with such contention had it been the respondents (Bowman and Puryear) who instituted this proceeding prior to sentencing (see United States v. Miller, 249 F. Supp. 59, [U. S. Dist. Ct., S. D. N. Y., 1965]). However, the pending application was commenced by the District Attorney and, as above indicated, the very nature of his proceeding, coupled with the recent judicial determinations of the highest court of our country (supra), mandates consideration of the reformatory sentence issue (art. 75) at this posture of the criminal proceedings against Bowman and Puryear rather than after their possible conviction and a review thereof in an appellate court.

Furthermore, in my opinion, it would not be a proper exercise of judicial responsibility for this court to permit the pending criminal trial to proceed, particularly in light of Duncan, without advising the sentencing court below whether the punishment it may wish to prescribe (in the event Bowman and Puryear are convicted) is constitutionally proper. Thus, in view of the prohibition sought here by petitioner and the constitutional issues raised by this proceeding, no valid reason has been set forth by him or the petitioner-intervenor which warrants any delay by this court in the determination of respondents' correlative rights, as framed by the pleadings of the respective parties.

Regarding the substantive issues here involved, it is noteworthy that the problem as to what constitutes a "serious" crime, requiring a jury trial, or a "petty" crime or offense, which can be tried by a court alone, is not a novel or recent one. So-called "petty" offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the United States Constitution's jury trial provisions (U. S. Const., 6th Amdt.; see "Appendix A, New York Colonial and State Legislation Concerning Summary Disposition of Petty Offenses", Felix Frankfurter and Thomas G. Corcoran, 39 Harv. L. Rev. 917, 983 et seq.). In view of the many publicized cases in this State and throughout the Nation which have discussed the history and background of this issue, culminating in the recent Duncan and Bloom decisions of the United States Supreme Court (supra), it would serve no useful purpose to set forth here in detail the long legislative history and continued judicial efforts in the State of New York to catalog and classify the various crimes, offenses and violations as they now appear in the newly revised Penal Law. Suffice it to note that in the past, New York's limitations on the right to a jury trial have been drawn, essentially, from its colonial history rather than any express language set forth in its own State Constitution (see Frankfurter and Corcoran, supra, pp. 948-949).

Thus, in contrast with the Puritan Colonies, New York relied most heavily for its law enforcement upon the summary powers of its Magistrates. Subsequent legislation dealing with specific crimes and offenses continually added to the volume of punitive laws committed to the jurisdiction of Magistrates. Far from any repeal of these colonial laws which conferred summary powers upon the Magistrates, the adoption of the State Constitution of 1777 and later legislative enactments vigorously utilized these powers of the Magistrate by submitting to the jurisdiction of his tribunal crimes which carried increased penalties and more severe sanctions upon conviction by the court alone. The possible consequences to defendants from convictions by the court for "petty" offenses have always been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration which results from the availability of speedy and inexpensive non-jury adjudications. This history and purpose have always controlled and guided the courts of this State in resolving the scope and nature of criminal cases which require the constitutionally guaranteed trial by jury (see N. Y. Const., art. I, §§ 2, 6; art. VI, § 15; § 18, subd. a; see, also, Murphy v. People, 2 Cow. [N. Y.] 815; Jackson v. Wood, 2 Cow. [N. Y.] 819; Frankfurter and Corcoran, supra, p. 947). It must now be determined whether in light of Duncan and Bloom (supra), New York can still adhere to its own historical standards and method of cataloging crimes or must it now review and perhaps alter its existing classifications of "petty" and "serious" crimes to accord with the newly enunciated Federal standards.

I find that the effect of the United States Supreme Court decision in Duncan v. Louisiana regarding the right to a jury trial is twofold. Initially, it makes applicable to the States the Sixth Amendment of the United States Constitution which provides for a jury trial by incorporating this requirement within the ambit and scope of the Fourteenth Amendment. Before Duncan, the Sixth Amendment's jury trial mandate was held not to be applicable to the several States (see, Fay v. New York, 332 U.S. 261; Palko v. Connecticut, 302 U.S. 319). Likewise, despite Federal and State constitutional provisions for trial by jury, as above indicated, there has always existed in this country the right to try "petty" offenses without the benefit of jury trial (see United States v. Barnett, 376 U.S. 681, 750; People v. Kaminsky, supra). However, the guidelines in the Federal and State courts as to what constituted a petty offense differed widely in the various jurisdictions.

More important, perhaps, than the application of the Sixth Amendment to the States is the fact that the Supreme Court of the United States, by way of Duncan (and the Bloom decision) (supra), has now begun to impose Federal standards on the several States as to what constitutes a "petty" crime and a "serious" crime. While the court, in Duncan, conceded that the process of drawing a line in the spectrum of crime separating "petty" from "serious" infractions cannot be wholly satisfactory, it was nevertheless necessary to do so, inasmuch as it considered the right to a jury trial for a serious crime a "fundamental right * * * basic in our system of jurisprudence" (supra, p. 149).

A brief factual synopsis of Duncan is relevant here. In this case, defendant, after a trial without a jury, received a sentence of 60 days for simple battery. The punishment prescribed therefor by Louisiana law authorized a sentence of up to two years. The United States Supreme Court held that a crime punishable by two years' imprisonment was a "serious" crime which required a trial by jury. The mere ...

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