People v. DiLorenzo, BTP-11

Citation585 N.Y.S.2d 670,153 Misc.2d 1021
Decision Date31 March 1992
Docket NumberBTP-11
PartiesThe PEOPLE of the State of New York v. Alex DiLORENZO, III and Jay Weiss, Defendants
CourtNew York City Court

Morvillo, Abramowitz, Grand, Iason & Silberbreg, P.C., New York City (Barry A. Bohrer & Joel M. Cohen, of counsel), for defendant, Alex DiLorenzo, III.

Gerald B. Lefcourt, P.C., New York City (Gerald B. Lefcourt, Joshua L. Dratel, Sheryl E. Reich, of counsel), for defendant, Jay Weiss.

O. Peter Sherwood, Corp. Counsel, New York City (Deborah Rand & Dana Biberman, of counsel), for the People.

ALEXANDER W. HUNTER, Jr., Judge.

Does a defendant have a right to a trial by jury where he is charged with multiple offenses, each separately carrying a penalty of less than six months' incarceration but in the aggregate are punishable by a potential penalty in excess of six months? See generally Annot. 26 ALR Fed. 736 [1976].

At bar, defendants stand accused of four counts of Administrative Code violations. Two offenses are punishable by imprisonment of up to six months or a fine of up to $5,000, or both. The two remaining offenses carry penalties of imprisonment of up to ninety days, or a fine of up to $5,000, or both.

Although he does not concede that aggregating the penalties for the offenses with which he has been charged would be appropriate in this case, defendant Weiss asserts his Sixth Amendment right to a jury trial inasmuch as he may be subject to a potential penalty of over six months' imprisonment in addition to fines should the sentences imposed run consecutively. Defendant DiLorenzo joins in this and all motions. The People do not oppose this motion.

The Supreme Court, in construing our Sixth Amendment right to a jury trial, has concluded that the right does not attach if one is charged with petty offenses but guaranteed only for those charged with offenses categorized as serious. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 [1968]. Additionally, the most relevant criteria for determining the seriousness of an offense is the authorized penalty set by the legislature. Blanton v. City of Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 [1989].

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) is the benchmark ruling regarding what category of crimes constitutes petty offenses. Baldwin concludes that the right to a jury trial not only attaches to felonies but also embraces classes of misdemeanors which involve imprisonment in excess of six months. The potential of a sentence in excess of six months takes an offense out of the "petty" category and triggers the right to a trial by jury. The Court reasoned that the disadvantages arising from the denial of a jury trial are outweighed by the benefit of speedy and inexpensive non-jury adjudications.

Prior to the Baldwin ruling, it was the practice in New York City to try all misdemeanors before a three judge non-jury panel. In 1971, to comply with the mandates of Baldwin, section 340.40 of the Criminal Procedure Law was drafted requiring, in New York City, a single judge non-jury trial where an information "charges a misdemeanor for which the authorized term of imprisonment is not more than six months". 1971 McKinney's Session Laws of N.Y., at 2497.

Although the legislature drafted CPL 340.40 to conform with the holding in Baldwin, there appears to have been an oversight in clarifying what the mode of trial should be where more than one so called "petty" offense is charged in an information. Furthermore, although it is clear that individually charged misdemeanor counts may be considered "petty" for mode of trial purposes because of legislative authorization for a maximum jail term of six months, there is language in Baldwin which might indicate that the mere possibility of imprisonment greater than six months triggers the right to a jury trial. The only logical statutory interpretation of CPL 340.40 and related sections, however, is that the legislature intended that the trial of multiple petty offenses also be a single judge trial.

This interpretation is gleaned by an analysis of CPL 340.40[1], [2] and [3] and CPL 350.20(4). Subdivisions one and two of CPL 340.40 mandate that the trial of an information be a single judge trial except where a misdemeanor is charged. In New York City, however, a trial of an offense with an authorized term of imprisonment of less than six months must be a single judge trial. Subdivision 3 of section 340.40 contains the only reference to multiple count informations under CPL 340.40. Under this subsection, a defendant is entitled to a jury trial "even though the information also charges an offense for which he is otherwise not entitled to a jury trial". From this language it seems that it was the intent of the legislature to attach the right to a jury trial to a certain class of misdemeanor as opposed to an aggregation of petty offenses.

Subdivision four of CPL 350.20 contains a similar reference to multiple count proceedings. This subsection sets limits on the authority of a judicial hearing officer and also indicates the extended authorization to conduct non-jury single judge trials. It states that a trial by a judicial hearing officer "shall not apply where the single judge trial is of an information at least one count of which charges a class "A" misdemeanor". This section, of course, is not in effect now that the Misdemeanor Trial Law has not been extended after its prescribed sunset provision of July 1, 1991 and, thus, neither has the designation of class "A" misdemeanors with six months' sentencing limitations. The logical statutory conclusion which may be interpreted from this subsection, however, indicates that the single judge trial authorization extends to the combination of petty offenses which in the aggregate expose the defendant to in excess of six months' imprisonment.

As a consequence, a constitutional question arises as to whether a jury trial is required because two or more so called petty offenses that are tried together may expose a defendant to an aggregate sentence in excess of six months if consecutive sentences were to be imposed. Indeed, because of the mandatory nature of the requirement of single judge trials, the potential for consecutive sentencing under P.L. § 70.25[1], and the absence of any expressed statutory prohibition to impose consecutive sentencing in non-jury trials, this is the issue presented in the instant action.

In 1974, three years after Baldwin, the question of aggregate sentencing as it affects the right to a jury trial was discussed in separate Supreme Court decisions decided on the same day, Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 and Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897. Both cases dealt with multiple contempt charges where sentencing parameters were not set by the legislature.

In Codispoti, the petty or serious nature of an offense was determined by the sentence actually imposed. Thus, the imposition of several consecutive six month sentences for several separate acts of contempt was deemed violative of a defendant's right to a jury trial, even though no individual sentence for more than six months was imposed for any one count. Taylor v. Hayes further clarified the rule in multiple contempt cases. In Taylor, the court reasoned that contempt may be considered a petty offense not mandating a jury trial, even if eight separate counts are charged, if the maximum penalty actually imposed is not greater than six months. This is true even if the original sentencing was for greater than six months but was later modified to conform with constitutional requirements.

For purposes of determining the right to a jury trial, the charge of contempt, however, is an aberrance because by its nature the maximum penalty authorized--the most relevant standard for determining jury trial rights (see, Blanton, supra )--is not usually set by the legislature but by the judiciary. These two cases analyzing multiple contempt charges are therefore not completely analogous to the case at bar. Indeed, the Supreme Court has yet to address this issue. But, see, U.S. v. Goodwin, 457 U.S. 368, 388 fn. 2, 102 S.Ct. 2485, 2496 fn. 2, 73 L.Ed.2d 74 (1982) (Brennan, J., dissenting).

Lower courts across the country that have attempted to identify the correct rule of law where multiple authorized petty offenses are charged, are divided into three distinct viewpoints.

The first adheres to a penalty-oriented approach, which stipulates that the right to a jury trial not only depends on a legislative determination that the offenses are "petty" but also depends upon the application of a formula which requires adding together the maximum authorized sentences of the individual petty offenses. Thus, if multiple "petty" crimes expose the defendant to an aggregate sentence in excess of six months, the right to a trial by jury automatically attaches. See, e.g. United States v. Potvin, 481 F.2d 380 [10th Cir.1973] (cited with approval in United States v. Goodwin, 457 U.S. 368, 388 fn. 2, 102 S.Ct. 2485, 2496 fn. 2, 73 L.Ed.2d 74 (1982)) (Brennan, J., dissenting); United States v. Coppins, 953 F.2d 86 (4th Cir.1991); Haar v. Hanrahan, 708 F.2d 1547 [10th Cir.1983]; United States v. Musgrave, 695 F.Supp. 231 [W.D.Va.1988]; State v. Benjamin C., 109 N.M. 67, 781 P.2d 795 [App.1989]; Vallejos v. Barnhardt, 102 N.M. 438, 697 P.2d 121 [1985].

The second line of cases concludes that a jury trial is only required in situations where a sentence of more than six months is actually imposed. Where the imposition of consecutive sentencing is in the discretion of the court, it is the exercise of this discretion--not the fact that there is discretion--that triggers a right to a jury trial. See, e.g., Maita v. Whitmore, 508 F.2d 143 (9th Cir.1974), cert. denied 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975...

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2 cases
  • People v. Estevez
    • United States
    • New York City Court
    • January 6, 1995
    ...up to $5000 while two other offenses were punishable by imprisonment of up to 90 days and/or a fine of up to $5000 (People v. DiLorenzo, 153 Misc.2d 1021, 585 N.Y.S.2d 670 [Crim.Ct., Bronx County 1992]. In the DiLorenzo case, the court held that a jury trial is required in multiple petty of......
  • People v. Foy, AP-10
    • United States
    • New York City Court
    • June 18, 1992
    ...requires a trial before a Judge where no single charge carries an authorized sentence of more than six months. ( People v. DiLorenzo, 153 Misc.2d 1021, 585 N.Y.S.2d 670.) Thus, only if the statute itself is unconstitutional would the defendant be entitled to a jury trial, even if the docket......

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