Gold v. Gartenstein

• Decision Date: 14 June 1979
• Parties: In the Matter of the Application of Eugene GOLD, District Attorney of Kings County, for an Order Pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner, v. Stanley GARTENSTEIN, Judge of the Criminal Court, Respondent, And Darry P., Defendant, Respondent.
• Court: New York Supreme Court

Page 852

418 N.Y.S.2d 852

100 Misc.2d 253

In the Matter of the Application of Eugene GOLD, District Attorney of Kings County, for an Order Pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner, v. Stanley GARTENSTEIN, Judge of the Criminal Court, Respondent And Darry P., Defendant, Respondent.

Supreme Court, Criminal Term, Kings County, Part I.

June 14, 1979.

Dist. Atty. of Kings County, Eugene Gold by Asst. Dist. Atty. Suzan Picariello, for petitioner.

Harvey Greenberg, New York City, for Stanley Gartenstein.

Leon Polsky, New York City (Legal Aid Society), by Paul Carpenter, Brooklyn, for Darry P.

MEMORANDUM

IRVING RADER, Justice.

This is a proceeding brought to prohibit respondent, a judge in the Criminal Court, from enforcing "an order directing that defendant, DARRY P., a person entitled to mandatory youthful offender treatment, receive a jury trial."

Defendant Darry P., age 16, is charged in an information with petty larceny and criminal possession of stolen property arising out of an alleged purse snatching from Kathleen Whitty on March 18, 1978. Defendant is an eligible youth within CPL 720.10. Since both charges are misdemeanors, defendant is not entitled to a jury trial (CPL 340.40, subd. 7). Defendant, nonetheless, moved before respondent Gartenstein for a trial by jury. Defendant claimed that CPL 340.40, subd. 7 violated his Sixth Amendment right to trial by jury and also violated his Fourteenth Amendment right to equal protection of the law.

In his opinion (People v. Darry P., 96 Misc.2d 12, 408 N.Y.S.2d 880), respondent granted the motion and declared CPL 340.40, subd. 7 unconstitutional. Respondent stated that the defendant's Sixth Amendment rights, the principle governing the predicate nature of youthful offender finding, the defendant's right to treatment were violated by the statute. Petitioner then commenced this proceeding to prohibit respondent from enforcing his order.

The threshold question herein is whether a writ of prohibition is available to petitioner.

Petitioner claims he is entitled to protection because it is the "sole * * * remedy to redress the harm caused by respondent's disregard of the statutory mandate * * * " (p. 6, affidavit November 9, 1978). In a reply affidavit, petitioner further claims that he is entitled to this relief because of the "ramifications of this decision which directly contravenes the espoused public policy of New York * * * (and) the compelling nature of the problem" (p. 3, affidavit May 2, 1979).

In the Matter of State of New York v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351, defendants moved for a directive entitling them to more than 20 peremptory challenges to veniremen in selecting a jury, a number in excess of that authorized by statute. The Trial Court granted defendants' motion and ruled that defendants were entitled to 30 jurors. However, it denied the People an equal number of challenges, and permitted them only 20 peremptory challenges. The People claiming that the determination was nonappealable, sought a writ of prohibition. In denying the writ, the Court said, at pp. 62 and 63, 364 N.Y.S.2d at p. 882, 324 N.E.2d p. 354 "It is equally clear, however, that nonreviewability by way of appeal Alone, does not provide a basis for reviewing error by collateral proceeding in the nature either of prohibition or mandamus (citations omitted)." (emphasis supplied)

Prohibition is available only when "a court acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter, or where it exceeds its authorized powers in a proceeding over which it has jurisdiction." (Matter of Steingut v. Gold, 42 N.Y.2d 311, 315, 397 N.Y.S.2d 765, 768, 366 N.E.2d 854, 857). Even "constitutional issues involving errors of substantive or procedural law are not cognizable by way of prohibition." (LaRocca v. Lane, 37 N.Y.2d 575, 580, 376 N.Y.S.2d 93, 98, 338 N.E.2d 606, 610; Matter of Blake v. Hogan, 25 N.Y.2d 747, 303 N.Y.S.2d 505, 250 N.E.2d 568). Clearly, respondent had subject matter jurisdiction over the issues. Thus, if prohibition is to be found, respondent must have acted in excess of his power. As stated in LaRocca v. Lane, supra, 37 N.Y.2d at p. 580, 376 N.Y.S.2d at p. 98, 338 N.E.2d at p. 611. "(T)here is no sharp line between a court acting in error under substantive law or procedural law and a court acting in excess of its powers * * * ".

In determining whether or not respondent acted in excess of his power or merely committed an error in substantive or procedural law, the court is guided by the principle that an inferior court should exercise restraint in declaring a statute unconstitutional (Matter of Van Berkel v. Power, 16 N.Y.2d 37, 261 N.Y.S.2d 876, 209 N.E.2d 539; Matter of Ahern v. South Buffalo Rye Company, 303 N.Y. 545, 104 N.E.2d 898; People v. Estrada, 80 Misc.2d 608, 364 N.Y.S.2d 332). When a court does not exercise such restraint and rules a statute unconstitutional where there is a rational basis for its constitutionality, it would appear to be a proper subject of prohibition (Matter of Vergari v. Kendall, Index No. 544, 1/5/78, Sup.Ct., Westchester County).

Nonetheless, prohibition is not mandatory but is discretionary with the court (LaRocca v. Lane, supra). In determining whether to exercise its discretion, this court considers the gravity of the harm, the remedies which may be available to petitioner, and the magnitude of the problem (LaRocca v. Lane, supra).

The court finds that respondent, in directing a jury trial in contravention of the statute and where no constitutional right exists, acted in excess of his power, and the granting of a writ of prohibition is proper.

The right to trial by jury is guaranteed by the Sixth Amendment to the Constitution. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, the court held that the Fourteenth Amendment guaranteed to defendants in State criminal trials the right to jury trial provided in the Sixth Amendment. The right to jury trial is not absolute. It does not extend to "petty" offenses (District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843; Frank v. U. S., 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162; Baldwin v. N. Y., 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437; Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629). The issue facing this court is to distinguish between petty and serious offenses, and to determine into which category youthful offender treatment belongs.

In Callan v. Wilson, 127 U.S. 540, at p. 557, 8 S.Ct. 1301, at p. 1307, 32 L.Ed. 223, the court defined "petty" offenses as those " * * * which, according to common law, may be proceeded against summarily * * * " Thereafter, in District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, the court stated at p. 73, 51 S.Ct. at p. 53 "Whether a given offense is to be classed as a crime, so as to require a jury trial, or as a petty offense . . . depends primarily on the nature of the offense." In District of Columbia v. Clawans, supra, the court stated 300 U.S. at p. 630, 57 S.Ct. at p. 664 "We cannot say that this penalty when attached to the offense * * * gives it the character of * * * a major offense." Thus, the Court adopts a nature of offense and penalty standard. In Baldwin v. New York, supra, 399 U.S. at p. 68, 90 S.Ct. 1886, the court refined this standard by calling punishment "the most relevant" criterion. Coming full circle the court, in Codispoti v. Pennsylvania, 418 U.S. 506, at p. 512, 94 S.Ct. 2687, at p. 2691, 41 L.Ed.2d 912, stated "Our decisions have established a fixed dividing line between petty and serious offense: those crimes carrying a sentence of more than six months are serious crimes, and those carrying a sentence of six months or less are petty offenses." Thus, the court apparently sets a six months period of incarceration standard. Those crimes which carry a maximum period of six months or less are petty and those carrying a longer incarceration period are serious. However, in Ludwig v. Mass., 427 U.S. 618, at p. 629, 96 S.Ct. 2781, at p. 2787, 49 L.Ed.2d 732, the court said, "Our disposition . . . does not require us to disturb the holding in Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 * * *. The court announced: 'Except in that class or grade of offenses called petty which according to common law may be proceeded against summarily' * * * " The court cited with approval the standard first enunciated in Callan v. Wilson, supra.

The courts appear to be divided on whether the "six months" period of incarceration standard or whether the common law treatment or nature of offense and punishment standard is the law today. The following cases decided after Codispoti (supra) apparently adopt the "six month" period of incarceration standard: State of Nebraska v. Young, 194 Neb. 544, 234 N.W.2d 196; Florida v. Webb, Fla., 335 So.2d 826; City of Tampa v. Ippolito, Fla.App., 360 S.2d 1316; Justiniano-Matos v. Gaspar Rodriguez, D.C., 440 F.Supp. 673; U. S. v. F. M. C. Corp., D.C., 428 F.Supp. 615; People v. Trotman, City Ct., 413 N.Y.S.2d 829; People v. Joseph M., 84 Misc.2d 1046, 377 N.Y.S.2d 440; People v. Gray, 97 Misc.2d 285, 411 N.Y.S.2d 170, and Mr. Justice Blackman in Scott v. Ill., --- U.S. ----, 99 S.Ct. 1158, at pp. 1170-1171, 59 L.Ed.2d 383. On the other hand, the following cases apparently adhere to either "common law" treatment or nature of offense plus punishment standard: City Court of Tucson v. Lee, 16 Ariz.App. 449, 494 P.2d 54; cf. Goldman v. Kautz, 111 Ariz. 431, 531 P.2d 1138; Parham v. Municipal Court of Sioux Falls, S.D., 199 N.W.2d 501; Baker v. Fairbanks, Alaska, 471 P.2d 386; U. S. v. Davis, D.C., 430 F.Supp. 1263; Brady v. Blair, D.C., 427 F.Supp. 5; U. S. v. Newberne, D.C., 427 F.Supp. 361; U. S. v. Woods, D.C., 450 F.Supp. 1335; U. S. v. Merrick, 4th Cir., 459 F.2d 644, footnote 4; U. S. v. Stewart, 6th Cir., 568 F.2d...