The opinion of the court was delivered by: FRANKEL
The nine plaintiffs in this case, suing for themselves "and members of their class," are defendants in criminal proceedings which have been partially processed and remain pending in the Criminal Court of the City of New York. Each of them, in circumstances to be more fully detailed below, has moved in that Court for a trial by jury, claiming a right to such a trial under the Sixth Amendment as it is made applicable to the States by the Fourteenth, Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). Following the denial of those motions, and while all of them remain free "on parole" (or, in one case, on bail) awaiting trial without a jury, they have come here seeking (1) a declaratory judgment which would in effect reverse the rulings of the state tribunal by invalidating two state statutes which have been held to preclude jury trials in their cases, and (2) a permanent injunction restraining the defendants (Judges of the New York City Criminal Court)
"from denying to plaintiffs and the class they represent the opportunity to be tried by jury in cases involving serious crimes with possible imprisonment of up to one year and [ordering] the defendants * * * to grant to plaintiffs and the class they represent the opportunity to be tried by jury in cases involving serious crimes." Promptly after filing the suit, plaintiffs moved for a preliminary injunction and the convening of a three-judge court. Defendants cross-moved for dismissal of the complaint, urging at the same time that there was no question of sufficient substance to warrant a hearing by three judges. Without dwelling for too long over the unrewarding subtleties of deciding whether plaintiffs' views, though they seemed erroneous at the outset, were "substantial" or "unsubstantial," the judge to whom the case first came referred it to this tribunal. We have considered the opposing motions and conclude, for reasons outlined hereafter, that the complaint should be dismissed.
The two targets of plaintiffs' constitutional attacks are:
(1) § 913-h, N.Y.Code of Criminal Procedure, which governs cases of "youths" (aged 16 through 18) without prior felony convictions who have been found eligible for treatment as alleged "youthful offenders." In the case of such a youth, this section provides: "In the event the defendant enters a plea of 'not guilty,' or, if the court on its own motion so direct, the defendant shall be tried for the purpose of determining whether he shall be adjudged a youthful offender. The trial shall be held by the court without a jury." (McKinney 1958).
(2) § 40 of the N.Y. City Criminal Court Act, the pertinent first sentence of which says simply: "All trials in the court shall be without a jury." (McKinney Supp.1968).
Six of the nine plaintiffs face trial upon a variety of alleged wrongs classified under New York Penal Law as "class A misdemeanors." On each such charge (in some of the cases the individual is accused of more than one misdemeanor) there is a possible maximum term of up to one year in prison. Of the six plaintiffs charged with such misdemeanors, four (Richardson, Pagan, Wilson and Simmons) are "adults" and two (Ratliff and Morton) are, respectively, 18 and 19 years old. Although the complaint says the latter two confront possible imprisonment for up to one year, plaintiffs' brief says these two, classified as "young adults," could be sent to reformatories for up to four years, and this (though it makes no difference for present purposes) would seem to be so under N.Y. Penal Law, Consol.Laws, c. 40, Art. 75.
The three remaining plaintiffs (Drysdale, Wing, and Collier) have sought and obtained permission to be tried as "youthful offenders." The sentencing alternatives available for a person adjudicated as a youthful offender include confinement in a reformatory for a period of up to four years. N.Y. Code Crim.Proc. § 913-m(1)(d) (McKinney Supp.1968); N.Y. Penal Law, Art. 75 (McKinney 1967).
As noted earlier, all of the plaintiffs have moved in the New York City Criminal Court, where they are all scheduled to be tried, for orders providing them with trial by jury, a procedure they say is required for their cases by the decision in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). That recent decision, all will recall, held applicable to the States, via the Fourteenth Amendment, the Sixth Amendment right to jury trial for "serious" as distinguished from "petty" offenses. The Court found it unnecessary there to "draw a line * * * separating petty from serious infractions" (pp. 160-161, 88 S. Ct. p. 1453), deeming it "sufficient" for the purposes before it "to hold that a crime punishable by two years in prison is * * * a serious crime and not a petty offense" (pp. 161-162, 88 S. Ct. p. 1454). Nothwithstanding the area thus seemingly left unresolved by the highest Court,
plaintiffs here say that Duncan "clearly" governs their cases, requiring that they be tried by jury and that the above-quoted New York statutes, purporting to bar such trials, be declared unconstitutional.
The rejection of that contention, and resultant denial of their motions, by the New York City Criminal Court would, of course, be appealable if and when any of the plaintiffs are convicted following trial without a jury. They urge, however, that the situation is an extraordinary one demanding intervention by the federal district court in what amounts to an interlocutory appeal from the adverse rulings of the state trial court. More precisely, plaintiffs contend that their cases are proper for a federal injunction against continuation of their state prosecutions because they will, in the absence of such relief, suffer irreparable injury for which there can be no adequate remedy at law. The specific allegations of the complaint in this respect are these:
Par. IV: "Each of the plaintiffs is without adequate remedy at law to preserve and enforce his right to trial by jury and each faces irreparable injury as a result thereof in that each plaintiff if convicted, and the members of their class, if convicted, may serve a greater sentence than may constitutionally be imposed without the right to trial by jury being available and each will lack adequate remedies at law to prevent this occurrence by means of appeal."
Par. VIII : "The plaintiffs are without adequate remedy at law because were they required to face trial without jury and then seek reversal on appeal if convicted, they could serve a greater period of imprisonment pending appeal than would be constitutionally permissible without trial by jury."
Par. XI : "Plaintiffs and the class they represent face irreparable injury because of the possible imprisonment to be faced pending appeal if they are convicted. Plaintiffs and the class they represent are without remedy at law to obtain a trial by jury in the Courts of the State of New York."
While the quoted assertions are made in three separate places in the complaint, they will be seen to amount to the same thing in each instance -- that, in the language last quoted, plaintiffs "face irreparable injury because of the possible imprisonment * * * pending appeal if they are convicted." There are no allegations in the complaint of any other kind of possible irreparable injury faced by plaintiffs or people in their circumstances.