On July 15, 1969, petitioner was adjudicated a youthful offender in the Criminal Court of the City of New York for having possessed hashish on November 20, 1968. On September 11, 1969, he was sentenced to serve six months in the New York City Penitentiary. He now brings this habeas corpus proceeding to test the legality of the sentence imposed upon him and his incarceration thereunder.
The proceeding is apparently the first one calling for a determination of whether the amendment of section 913-m of the Code of Criminal Procedure (L. 1969, ch. 375, eff. Sept. 1, 1969) is ex post facto when a definite sentence of six months is imposed by the Criminal Court of the City of New York after the effective date of the amendment upon a youthful offender who committed the guilty act prior to the effective date of the amendment.
Up to September 1, 1969, section 913-m of the Code of Criminal Procedure, so far as pertinent here, provided:
"1. Upon adjudication of any person as a youthful offender, the court must impose one of the following sentences prescribed by the penal law:
"(a) A sentence of probation;
"(b) A sentence of conditional discharge;
"(c) A sentence of unconditional discharge; or
"(d) A reformatory or an alternative local reformatory sentence of imprisonment."
Since the repeal in 1967 of former article 7-A of the Correction Law (L. 1967, ch. 324), which had provided for reformatory sentences in the City of New York, no "local reformatory sentence" could be imposed under this statute. Thus the only reformatory sentence possible under section 913-m was to a State correctional institution. This meant a term of imprisonment of up to four years for a youthful offender convicted of an act which for an adult would constitute a misdemeanor. (Penal Law, § 75.10.)
Different from the Courts of Special Sessions and District Courts in counties other than New York, where a defendant is entitled to a jury trial (Code Crim. Pro., § 702), all trials in the Criminal Court of the City of New York are without a jury (N. Y. City Crim. Ct. Act, § 40). In May, 1968 the United States Supreme Court, in Duncan v. Louisiana (391 U.S. 145), held that the trial by jury guaranteed by the Sixth Amendment of the United States Constitution is incorporated in the Fourteenth Amendment's mandate of due process and is therefore binding upon the States (p. 149). But the court also held that this right to a trial by jury applied only to "serious" crimes and not to the so-called "petty" offenses (p. 159). Although the court in that case decided that a crime punishable by two years' imprisonment is a serious crime and not a petty offense, the court failed to spell out specifically the difference between "petty" offenses and "serious" crimes, holding that "the definitional task necessarily falls on the [State] courts" in the first instance to characterize the various crimes (p. 160).
This definitional problem was not long in turning up for adjudication. Two cases, People v. Baldwin and Matter of Hogan v. Rosenberg, which presented different phases of the problem, were argued simultaneously in the Court of Appeals (24 N.Y.2d 207) on January 22, 1969.
Baldwin involved an adult charged with a misdemeanor carrying a maximum sentence of one year whose pretrial motion for a jury trial was denied. The Court of Appeals in that case merely canvassed the history of the difference between "serious" and "petty crimes" vis a vis the right to trial by jury and concluded that "those crimes which are denominated misdemeanors in this State are not crimes to be characterized as serious and, therefore, individuals charged with such crimes need not be afforded the Sixth Amendment's guarantee of a right to a trial by jury" (p. 216). That case is therefore not germane to the problem here.
In Matter of Hogan v. Rosenberg (24 N.Y.2d 207, supra), on the other hand, as the court noted (p. 219), the defendant, Marvin Puryear, was charged with possession of burglar's tools, a class A misdemeanor, and criminal trespass in the third degree, a violation. This made the defendant subject to sentencing as a young adult (anyone between 16 and 21 years of age), pursuant to article 75 of the Penal Law, by which he might have received a reformatory sentence lasting four years. In that case, the trial court, upon the authority of Duncan (391 U.S. 145, supra) granted defendant's motion for a jury trial. Thereupon, the District Attorney brought an article 78 proceeding to prohibit the trial court from carrying out its order. Special Term, on the basis of Duncan, held that "section 40 of the New York City Criminal Court Act, to the extent that it denies a jury trial to young adults who face reformatory sentence ...