People v. Link

• Decision Date: 23 February 1981
• Parties: The PEOPLE of the State of New York v. Carol LINK and Debra Meltsner, Defendants.
• Court: New York City Court

Page 581

436 N.Y.S.2d 581

107 Misc.2d 973

The PEOPLE of the State of New York v. Carol LINK and Debra Meltsner, Defendants.

Criminal Court of the City of New York, New York County, Part AP 9.

Feb. 23, 1981.

Robert M. Morgenthau, Dist. Atty. of the County of New York, for the People; Asst. Dist. Atty. Jane Sachs, of counsel.

Kassner & Detsky, P. C., New York City, for defendants; Kenneth R. Fields, New York City, of counsel.

Opinion and Order

WILLIAM M. ERLBAUM, Judge.

Defendants, Carol Link and Debra Meltzner, are charged with the crime of prostitution. ¹ They have moved for trial by jury, claiming that Criminal Procedure Law Section 340.40, subdivision 2 ² (which directs that the trial shall be before a single judge) is unconstitutional, first, because prostitution is not a "petty" but a "serious" offense requiring trial by jury under the federal Constitution, ³ second, because that Section denied them "equal protection" by withholding the right to trial by jury in class B misdemeanor ⁴ trials in New York City while permitting jury trials of such cases in the remainder of the State.

I.

Whether a crime is serious or petty can be determined by several criteria. ⁵ In Duncan v. Louisiana, ⁶ the Supreme Court held that the length of any sentence of imprisonment that may be imposed is a major but not exclusive criterion. In Baldwin v. New York, ⁷ the Court held that exposure to incarceration for more than six months conclusively establishes the crime charged as serious.

Both Duncan and Baldwin certified the continuing validity of earlier holdings ⁸ that the nature of an offense and a defendant's exposure to disabilities other than incarceration may also qualify that offense as serious.

Thereafter, the Supreme Court decided Codispoti v. Pennsylvania, ⁹ involving a criminal contempt conviction. The opinion contained language which the District Attorney herein relies upon in opposing defendant's motion:

"... 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." ¹⁰

The District Attorney then argues that inasmuch as convicted prostitutes may be jailed for up to only three months, prostitution is ipso facto a petty offense.

To the contrary, I hold that Codispoti's fixed dividing line of six months was only intended to be the criterion of whether or not an offense is serious where it is not otherwise inherently serious apart from the sentence to which the defendant is exposed. ¹¹

Taylor v. Hayes, ¹² announced the same day as Codispoti, explicitly recognized that some crimes are serious "regardless of the penalty involved." ¹³ In Ludwig v. Massachusetts, ¹⁴ the Court again observed that the length of a defendant's exposure to jail is "usually" ¹⁵ but not exclusively the measure of the seriousness of the charge. In Scott v. Illinois, ¹⁶ the Court again noted that even as to offenses carrying incarceration of six months or less, trial by jury is only unnecessary "if they otherwise qualify as petty offenses ...". ¹⁷

II

Like the institution of marriage ¹⁸ itself, prostitution is older than the common law. ¹⁹ The District Attorney does not dispute that even if there were no incarceration involved, a prostitution conviction results in profound consequences for the person convicted. From Biblical ²⁰ times and throughout the world ²¹ today, to mark a woman a prostitute is to designate her a pariah. ²² Whether she is described as a "hustler," a "hooker," a "bawd" or a "harlot," a "Biffer," a "trull," "pigmeat" or a "whore," ²³ the prostitute bears the opprobrium of "the fallen woman". ²⁴ Conviction exposes her to banishment by deportation ²⁵ to a foreign land; to denial of entry ²⁶ into America; to summary divorce ²⁷ at the inception of her husband; to being declared an unfit mother and deprived of the custody ²⁸ and visitation of her children; to expulsion from her residence; ²⁹ to exclusion from many forms of endeavor; ³⁰ and, with every expectation that her word of accusation will carry little weight in court ³¹ (for, who would believe her?), to being freely raped. ³²

Judges have described prostitutes as "malodorous and evil characters," ³³ perpetrators of "evil and wrongdoing," ³⁴ underminers of "public morals and decency ... befitting good people," ³⁵ and as "viscious" ³⁶ and vile ". ³⁷ To great masses of people, the prostitute is "connected to other crime-related activities and is a significant factor in increasing such crimes as robbery, assault, and narcotic possession and sale. " ³⁸ They associate her with organized crime, ³⁹ public indecency, ⁴⁰ family instability, ⁴¹ the blight of tourist and commercial areas, ⁴² and the spread of venereal disease. ⁴³

At bottom, however, the quintessential thrust of the label "prostitute" is to denominate the creature to whom it is affixed as, through and through, unprincipled, a low-life, one who would sell out any loyalty, desecrate any covenant, and, literally as well as characterologically as one willing to do just about anything for the right price. ⁴⁴ It is well-nigh inevitable that a woman so branded will be banned from the office, the factory, the home and the church. Ultimately, as defendants claim without dispute, the convicted prostitute is likely to despise herself. ⁴⁵

If there is a class of cases more eligible than prostitution for designation as "serious," notwithstanding that incarceration for more than six months is not in the picture, I have yet to find it. ⁴⁶

III

Ironically, the governmental authorities of New York County treat the crime of prostitution as serious. Desk appearance tickets in lieu of arrest, used in a wide variety of misdemeanor cases including many involving moral turpitude and violence, are never used in prostitution cases. ⁴⁷ Accused prostitutes are always subjected to formal arrest.

The Criminal Justice Agency routinely interviews defendants and submits reports to the arraigning magistrate in every felony category and in every type of misdemeanor case except one, concerning defendants' eligibility to be released upon their own recognizance. The one exception is the case of prostitution, where those steps are never taken. ⁴⁸

Adjournments in contemplation of dismissal ⁴⁹ are granted upon the application of the District Attorney to first-offenders in a wide variety of misdemeanor cases. The District Attorney never makes this application in prostitution cases. ⁵⁰

Likewise, the District Attorney freely consents to the acceptance of guilty pleas to reduced charges in countless categories of crime but never in prostitution cases. ⁵¹

Only in prostitution cases does the District Attorney have a uniform and unremitting policy of opposing all defense motions to dismiss first-offender cases in the interests of justice. ⁵² No matter how desperate were the circumstances which brought the offense into being, no matter how catastrophic are the predictable consequences of conviction to the first-offender, the District Attorney's unvarying position is that dismissal should be denied on account of prostitution's adverse impact upon the quality of life in New York County. ⁵³

The District Attorney thus shares with the community the disapprobation for those who mock and degrade sex by selling it commercially. Having shown the seriousness with which prostitution is regarded by the community and its designated officials, the District Attorney should not now say that such conduct is minor and that the attendant safeguard of trial by jury, before those accused can be convicted and branded, may be brushed aside.

IV

The Court finds that prostitution, no matter now lightly punished, is a serious crime ⁵⁴ and may not be prosecuted without the right to trial by jury. To the extent that C.P.L. Section 340.40, subd. (2) makes such trial unavailable in New York County, to wit, to these two defendants, that Section contravenes the Sixth and Fourteenth Amendments to the Federal Constitution and is null. In light of this resolution of the motion, it is unnecessary to reach and pass upon defendants' "equal protection" claim. ⁵⁵

Motion granted. Trial by jury ordered. ⁵⁶ Order stayed thirty days to afford the District Attorney adequate time to pursue his legal options. ⁵⁷

1 N.Y.Penal Law Section 230.00 (McKinney 1980); it places the offense in the class B misdemeanor category.

2 N.Y.Crim.Proc.Law Section 340.40(2) (McKinney 1971) provides that:

"In any local criminal court a defendant who has entered a plea of not guilty to an information which charges a misdemeanor must be accorded a jury trial, conducted pursuant to article three hundred sixty, except 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. The defendant may at any time before trial waive a jury trial in the manner prescribed in subdivision two of section 320.10, and consent to a single judge trial." (footnote omitted)

3 The Constitution provides that: "The Trial of all Crimes, except in Cases of Impeachment, shall be by jury ...". U.S.Const. Art. III, Section 2, Clause 3. The sixth amendment provides that: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ...". U.S.Const. Amend. VI.

The right to trial by jury, held not to apply to so-called petty or trivial offenses (Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888)), was made applicable to the States in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Defendants herein do not make any claim under the New York Constitution, which leaves the mode of trial entirely up to the legislature. N.Y.Const. Article 6, Section 18a (McKinney 1969).

4 A class B misdemeanor crime exposes the convicted defendant to imprisonment...