Hogan v. Rosenberg

• Citation: 296 N.Y.S.2d 584,58 Misc.2d 585
• Parties: Application of Frank S. HOGAN, District Attorney of the County of New York, Petitioner, for a Judgment under Article 78 of the Civil Practice Law v. The Honorable Jack ROSENBERG, the Criminal Court of the City of New York and the Several Judges thereof, and Leroy Bowman and Marvin Puryear, Respondents.
• Decision Date: 30 December 1968
• Court: United States State Supreme Court (New York)

Page 584

296 N.Y.S.2d 584

58 Misc.2d 585

Application of Frank S. HOGAN, District Attorney of the County of New York, Petitioner, for a Judgment under Article 78 of the Civil Practice Law v. The Honorable Jack ROSENBERG, the Criminal Court of the City of New York and the Several Judges thereof, and Leroy Bowman and Marvin Puryear, Respondents.

Supreme Court, Special Term, New York County, Part I.

Dec. 30, 1968.

Frank S. Hogan, Dist. Atty., New York County, pro se (Michael R. Juvilier, Lewis R. Friedman, New York City, of counsel).

Harold Rothwax, New York City, for respondent Puryear (Michael B. Rosen, Martin A. Schwartz, New York City, of counsel).

Anthony F. Marra, New York City, for respondent Bowman.

Louis J. Lefkowitz, Atty. Gen., for petitioner-intervenor (Samuel A. Hirshowitz, Maria L. Marcus, New York City, of counsel).

SAUL S. STREIT, Justice:

Pursuant to Article 78 of the Civil Practice Law and Rules, 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, Sec. 140.35), a Class A misdemeanor, and criminal trespass in the third degree (Penal Law, Sec. 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, Sec. 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, 88 S.Ct. 1444, 20 L.Ed.2d 491, as mandating such ruling. Petitioner now argues, however, that the determination of Judge Rosenberg is contrary to law. He notes that Section 40, 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 Section 33, New York City Criminal Court Act).

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, 101 N.E.2d 753, 30 A.L.R.2d 1259; Hogan v. Court of General Sessions of New York County, 296 N.Y. 1, 8, 68 N.E.2d 849, 852; Matter of United States of Mexico v. Schmuck, 294 N.Y. 265, 274, 62 N.E.2d 64, 69; Matter of City of New York v. Maltbie, 248 App.Div. 36, 38, 289 N.Y.S. 558, aff'd. 274 N.Y. 464, 8 N.E.2d 605). 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 (Hogan v. Court of General Sessions of New York County, supra, 296 N.Y. page 9, 68 N.E.2d page 853).

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. DeCillis, 14 N.Y.2d 203, 250 N.Y.S.2d 288, 199 N.E.2d 380 (1964) and People v. McConner, N.Y.L.J., December 11, 1968, p. 16, col. 8 App. Term, 2nd Department; see also People v. Kaminsky, 208 N.Y. 389, 102 N.E. 515). 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, 11 N.E.2d 330), 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, 88 S.Ct. 1444, 1453):

'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. State of Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, decided on the same day (May 20, 1968), I deem it incumbent 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 (Sec. 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 (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), mandate consideration of the reformatory sentence issue (Article 75, supra) 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 '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 (Sixth Amendment, U.S. Constitution; see 'Appendix A, New York Colonial and State Legislation Concerning Summary Disposition of Petty Offenses', Felix Frankfurter and Thomas G. Corcoran, 39 Harvard Law Review 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 U.S. 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...