People v. Elliot

• Decision Date: 12 January 1993
• Citation: People v. Elliot, 596 N.Y.S.2d 662, 157 Misc.2d 148 (N.Y. City Ct. 1993)
• Parties: The PEOPLE of the State of New York v. Tony ELLIOT, Defendant.
• Court: New York City Court

Page 662

596 N.Y.S.2d 662

157 Misc.2d 148

The PEOPLE of the State of New York v. Tony ELLIOT, Defendant.

Criminal Court of the City of New York Kings County, BTP 2.

Jan. 12, 1993.

Charles J. Hynes, Dist. Atty., Kings County by Asst. Dist. Atty. David Dong, for the People.

Larry Hallock, Legal Aid Soc. (Office of Robert Baum), Brooklyn, for defendant.

JOSEPH BRUNO, Judge.

Overview:

This is a case of apparent first impression which raises the issue of whether the silence of a defendant, throughout a full bench trial and verdict, on the issue of his ineligibility for youthful offender treatment, constitutes an implied waiver of his right to a trial by jury.

In the instant case, the defendant, an 18 year old youth, was charged with two misdemeanor counts and one violation in an Information filed by the Kings County District Attorney's office. The record of the defendant's prior convictions before the Court indicated that defendant had no prior mandatory youthful offender adjudications. Thus, after a series of pretrial proceedings and adjournments, the instant case was tried before this Court non-jury, pursuant to CPL 720.20 sections (1)(b), (2) and (3) and CPL 340.40(7).

After trial, this Court found defendant guilty of the misdemeanor counts. Subsequently, on the date set for sentencing and with a full investigation and report from the Department of Probation, it became apparent that the defendant had a prior adjudication as a mandatory youthful offender. It is without question that had the Court been informed of the fact of defendant's prior adjudication, this case would have been tried before a jury unless the defendant executed a proper waiver of trial by jury pursuant to CPL 320.10(2).

Defendant now moves this Court pursuant to CPL 330.30 to set aside the verdict on the grounds that he was denied his constitutional right to a trial by jury which he contends he never waived. The defendant, in support of his argument, maintains that his failure to advise the Court of his prior youthful offender adjudication should not militate against the granting of a new trial because he contends that his failure to inform the Court, whether deliberate or inadvertent, was protected by the Fifth Amendment privilege against self incrimination.

The People maintain that the defendant's failure to timely object at trial to the alleged error, i.e., the non-jury status of the case, bars him from raising the issue at this time. The People also contend that the defendant had a duty to inform the Court of his prior adjudication as a youthful offender in Supreme Court and that this information was not protected by the Fifth Amendment privilege against self incrimination.

Procedural History:

On May 16, 1991, defendant, allegedly acting in concert with two others, was arrested and charged in Supreme Court, Kings County for the crimes of Possession of an Imitation Pistol, Administrative Code of the City of New York § 10-131-g, a class A misdemeanor; Robbery in the Second Degree, Penal Law 160.10(2)(b), a class C felony, and Robbery in the First Degree, a class B felony. Defendant pled to Robbery in the Second Degree on September 23, 1991.

Defendant was adjudicated a youthful offender in that case in Supreme Court, Kings County on November 14, 1991 and he was placed on five years' probation.

The next day, November 15, 1991, the defendant was arrested in the instant case for the crimes of Menacing, PL 120.15, a class B misdemeanor; Criminal Possession of a Weapon in the Fourth Degree, PL 265.01(2), a class A misdemeanor, and Harassment, PL 240.25(1), a violation. He was issued a Desk Appearance Ticket returnable on December 17, 1991 in Kings County Criminal Court. On December 3, 1991, in the regular course of scheduling and preparing a case for arraignment, the defendant's prior arrest record was generated and added to the official court file. It omitted any reference to defendant's May 16, 1991 arrest and his adjudication as a youthful offender on November 14, 1991. Defendant was arraigned on the charges in this case on January 30, 1992.

On March 20, 1992, the Court determined that defendant would be a mandatory youthful offender pursuant to CPL 720.20 sections (1)(b), (2) and (3) if he were found guilty of any of the misdemeanor charges. Since the maximum jail sentence permissible for a youthful offender is six months pursuant to Penal Law 60.02, the right to a jury trial pursuant to CPL 340.40(7) does not adhere. See Mtr. of Gold v. Gartenstein, 100 Misc.2d 253, 418 N.Y.S.2d 852 (Sup.Ct., Crim.Term, Kings County, 1979); People v. Denning, 98 Misc.2d 369, 413 N.Y.S.2d 837 (App.Term, 1st Dept.1979).

The case was adjourned for a bench trial in BTP-2. On June 2, 1992, the bench trial began culminating in a verdict of guilty on the charges of Menacing, PL 120.15, and Criminal Possession of a Weapon in the Fourth Degree, PL 265.01(2). The defendant was acquitted of the Harassment charge.

On August 10, 1992, the date that the defendant was to be sentenced, this Court was informed for the first time from information contained in the investigation and sentence report prepared by the Department of Probation that the defendant had a prior arrest on May 16, 1991 and that he had been adjudicated a youthful offender in that case in Supreme Court, Kings County on November 14, 1991.

CONCLUSIONS OF LAW:

The first issue facing this Court was whether the defendant has a Fifth Amendment privilege against self incrimination which protected him and blunted any obligation that he might otherwise have had to provide the Court with information regarding his prior youthful offender adjudication. If this Court finds that defendant had a right to withhold information related to his prior youthful offender adjudication status from the Court because it implicated his Fifth Amendment privilege against self incrimination, then it would not be necessary to determine whether defendant waived his right to a trial by jury.

This Court finds that defendant has no privilege against self incrimination (see infra, pp. 668-669 for a complete discussion of this issue) and hence, it is necessary for this Court to determine whether the defendant is entitled to a new trial based upon his argument that no proper waiver of the right to trial by jury was ever offered or implied by the defendant or granted by the Court.

Defendant's motion is granted and a trial by jury is ordered on the basis that defendant never knowingly, voluntarily or intelligently waived his right to a trial by jury.

The Right to a Trial by Jury:

The right to trial by jury of one's peers is a fundamental right guaranteed by the Sixth Amendment to the United States Constitution. As the Supreme Court stated in Duncan v. Louisiana, (1968), 391 U.S. 145, 157-58, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 at 501: "Our conclusion is that in the American States, as in the federal judicial system, a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants."

The Supreme Court in Duncan, supra, incorporated the Sixth Amendment's guarantee of a trial by jury through the Fourteenth Amendment and made it binding on the states. The Court distinguished between "serious" and "petty" offenses, holding that "petty offenses" may be tried without a jury. In Baldwin v. New York, (1970), 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 at 440 the Court defined "petty" by considering the severity of the maximum penalty and concluded that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized."

Article 1, section 2 of the New York State Constitution provides inter alia that "trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever[.]..." The New York State Legislature, in conformity with constitutional limitations on the right to trial by jury, see Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, supra, enacted CPL 340.40(2) which states that, "... in the New York city criminal court the trial of an information which charges a misdemeanor for which the authorized term of imprisonment is not more than six months must be a single judge trial."

Mtr. of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 464 N.Y.S.2d 392, 451 N.E.2d 150 (1983) held that there is no right to a jury trial for a "petty offense" within the meaning of the Sixth Amendment. See also People v. Williams, 120 Misc.2d 68, 465 N.Y.S.2d 648 (Crim.Ct., Bronx County, 1983). The Court in Morgenthau cited Codispoti v. Pennsylvania, 418 U.S. 506 at 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 for the proposition that: "Our decisions have established a fixed dividing line between petty and serious offenses: 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 crimes."

The Legislature also provides that a mandatory Youthful Offender, a person at least 16 years old but less than 19 years old, who had not previously been convicted of a crime or adjudicated a youthful offender (pursuant to CPL 720.20) must be tried by a single trial judge without a jury. CPL 340.40(7).

The provision mandating that a youthful offender must be tried by a single trial judge does not violate the constitutional right to a trial by jury and it is not violative of equal protection requirements since only those persons charged with "serious" offenses having an authorized maximum penalty in excess of six months' incarceration are entitled to a jury trial. People v. Denning, supra, 98 Misc.2d 369, 413 N.Y.S.2d 837. See also Mtr. of Gold v. Gartenstein, supra, 100 Misc.2d 253, 418 N.Y.S.2d 852; People v. Gray, 97 Misc.2d 285, 411 N.Y.S.2d 170 (Crim.Ct.N.Y.County, 1978). The maximum sentence defendant could have received as a...