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MATTER FRANK S. HOGAN v. JACK ROSENBERG ET AL. (03/06/69)

COURT OF APPEALS OF NEW YORK 1969.NY.40735 <http://www.versuslaw.com>; 247 N.E.2d 260; 24 N.Y.2d 207 decided: March 6, 1969. IN THE MATTER OF FRANK S. HOGAN, AS DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK, APPELLANT, AND LOUIS J. LEFKOWITZ, ATTORNEY-GENERAL OF THE STATE OF NEW YORK, INTERVENOR-APPELLANT,v.JACK ROSENBERG ET AL., AND MARVIN PURYEAR, RESPONDENT; THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V. ROBERT BALDWIN, APPELLANT Matter of Hogan v. Rosenberg, 58 Misc. 2d 585, reversed. Counsel Frank S. Hogan, District Attorney (Michael R. Juviler, Lewis R. Friedman, Joan C. Sudolnik and David Otis Fuller, Jr., of counsel), for appellant in the above-entitled proceeding. Louis J. Lefkowitz, Attorney-General (Maria L. Marcus and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law. I. A sentence under article 75 of the Penal Law is rehabilitative and, therefore, cannot be the basis for the denomination of a crime as serious. Counsel Harold J. Rothwax, Michael B. Rosen and Martin A. Schwartz for respondent in the above-entitled proceeding. Counsel Nathan Z. Dershowitz, Milton Adler, Leon B. Polsky and Samuel Dawson for appellant in the above-entitled action. Counsel Frank S. Hogan, District Attorney (Michael R. Juviler, Lewis R. Friedman, Joan C. Sudolnik and David Otis Fuller, Jr., of counsel), for respondent in the above-entitled action. Chief Judge Fuld and Judges Bergan, Breitel and Jasen concur with Judge Scileppi; Judge Burke dissents and votes to affirm in an opinion in which Judge Keating concurs. Chief Judge Fuld and Judges Bergan, Breitel and Jasen concur with Judge Scileppi; Judge Burke dissents and votes to reverse in an opinion in which Judge Keating concurs. Author: Scileppi


Matter of Hogan v. Rosenberg, 58 Misc. 2d 585, reversed.

Chief Judge Fuld and Judges Bergan, Breitel and Jasen concur with Judge Scileppi; Judge Burke dissents and votes to affirm in an opinion in which Judge Keating concurs. Chief Judge Fuld and Judges Bergan, Breitel and Jasen concur with Judge Scileppi; Judge Burke dissents and votes to reverse in an opinion in which Judge Keating concurs.

Author: Scileppi

 The issue presented for our consideration in the first of two cases to be discussed is whether a defendant facing possible imprisonment of not more than one year is entitled to a trial by jury.

On August 10, 1968 the appellant, Robert Baldwin, then 26 years old, was arrested for jostling, a class A misdemeanor carrying a maximum term of imprisonment of one year (Penal Law, §§ 165.25, 70.15, subd. 1). The appellant's pretrial motion for a jury trial was denied. The trial, conducted without a jury pursuant to section 40 of the New York City Criminal Court Act, resulted in a conviction and the appellant was sentenced to the maximum one-year term. The judgment of conviction was affirmed by the Appellate Term, First Department, and the appellant has appealed pursuant to permission of the Chief Judge of this court.

The appellant argues that the United States Supreme Court's recent decision in Duncan v. Louisiana (391 U.S. 145) is dispositive of the issue presented herein. We do not agree.

Duncan held that the right to a trial by jury guaranteed by the Sixth Amendment is incorporated in the Fourteenth Amendment's mandate of due process. The court hastened to note, however, that the constitutional right to a trial by jury applies only to "serious" crimes, and not to the so-called "petty" offenses. The court then embarked upon a definitional journey to determine whether Louisiana's simple battery statute with a maximum term of two years was of such a serious nature that the deprivation of a jury trial for such an offense was violative of the now incorporated Sixth Amendment guarantee.

In holding that punishment by imprisonment for two years ipso facto renders a crime serious, Justice White, writing for the majority, stated:

"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 Sixth Amendment's jury trial provisions. There is no substantial evidence that the Framers intended to depart from this established common-law practice, and the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive non-jury adjudications. These same considerations compel the same result under the Fourteenth Amendment. Of course the boundaries of the petty offense category have always been ill-defined, if not ambulatory. 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. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little.

"In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled by District of Columbia v. Clawans [300 U.S. 617], to refer to objective criteria, chiefly the existing laws and practices in the Nation. In the federal system, petty offenses are defined as those punishable by no more than six months in prison and a $500 fine. In 49 of the 50 States crimes subject to trial without a jury, which occasionally include simple battery, are punishable by no more than one year in jail. Moreover, in the late 18th century in America crimes triable without a jury were for the most part punishable by no more than a six-month prison term, although there appear to have been exceptions to this rule. We need not, however, settle in this case the exact location of the line between petty offenses and serious crimes. It is sufficient for our purposes to hold that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense." (Duncan v. Louisiana, supra, pp. 160-162; emphasis added.)

It is evident from the majority opinion that Duncan cannot reasonably be interpreted as being dispositive of the present case, but rather should be read for the proposition that statutes which make crimes punishable by imprisonment for terms of two years or more are to be viewed as serious, notwithstanding how the people of a particular jurisdiction might characterize the crime. The obvious rationale functioning is that necessarily coupled with the incorporation of the Sixth Amendment's guarantee of a right to a trial by jury is the imposition of Federal standards. Duncan, however, fails to draw the exact line of demarcation where the maximum punishment to be imposed is less than two years, but rather states that "the definitional task necessarily falls on the courts" to characterize the various crimes. In the absence of any further indication from the Supreme Court as to what the Federal standards are, it is our opinion, after performing that definitional task, that the people of our State have historically drawn the proper distinction between petty and serious crimes so as to satisfy the constitutional mandate of the Sixth Amendment.

At common law, misdemeanors, crimes punishable by imprisonment for no more than one year, were not indictable offenses and as such were not afforded jury trials, but rather were tried by the Magistrate alone.

When the phrase "trial by jury" was placed in the Sixth Amendment, it carried with it "the meaning affixed to [it] in the law as it was in this country and in England at the time of the adoption of [the United States Constitution]" (Thompson v. Utah, 170 U.S. 343, 350). At that time several offenses characterized as "petty" were tried without juries and, in many instances, the maximum term of imprisonment was one year (District of Columbia v. Clawans, 300 U.S. 617, 624-626). The reasoning underlying these summary trials was as the Supreme Court stated in Duncan : "the possible consequences to defendants from convictions for petty offenses have been thought insufficient to outweigh the benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive non-jury adjudications" (supra, p. 160).

Recognizing the distinction between "petty" and "serious" offenses, the framers of the New York State Constitution provided that "Trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate" (N. Y. Const. [1777], art. XLI; see N. Y. Const. [1938], art. I, § 2).

The majority in Duncan stated that "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 locality may be taken 'as a gauge of its social and ethical judgments,' 300 U.S., at 628, of the crime in question" (Duncan v. Louisiana, supra, pp. 159-160). It is our opinion that the maximum penalty authorized in the State of New York for a particular crime is not merely a gauge of how the people of our State view that crime, but necessarily answers the question of whether in their judgment it is petty or serious.

In People v. Bellinger (269 N. Y. 265) the defendant was charged with violating section 359-e (subd. 3) of the General Business Law in that, being a dealer in securities, he failed to file a supplemental dealer's statement. At that time section 359-g provided that the penalties to be imposed for such an act should be "a fine of not more than five thousand dollars, or imprisonment for not more than two years or both".*fn1 The defendant argued that, although the charge in the information was designated a misdemeanor, in reality it was a felony and necessarily requires prosecution by an indictment and a trial by a jury. In reversing the judgment, this court stated that:

"The meaning of the words 'infamous crime,' which requires indictment by a grand jury and trial by a petty jury of twelve men, has been fairly well understood, during the years of our statehood, as evidenced by the distinction between ...


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