Petition — Erlbaum v. Morgenthau
Supreme Court brief1983
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No. 83___
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IN THE
Supreme Court of the United
OCTOBER TERM, 1983
<>
WILLIAM M. ERLBAUM,
a New York City Criminal Court Judge,
Petitioner,
—
ROBERT M. MORGENTHAL,
New York County District Attorney,
Respondent.
PETITION FOR AWRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR
THE STATE OF NEW YORK
RICHARD EMERY
(Counsel of Record)
NEW YORK CIVIL LIBERTIES UNION
84 Fifth Avenue
New York, New York 10011
(212) 924-7800
BURT NEUBORNE
CHARLES S. SIMS
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
| 132 West 43 Street
New York, New York 10036
Of Counsel
a
TABLE OF CONTENTS
TABLE OF AUTHORITIES. «. « «© «© © @ @ «
CRIMINAL COURT JUDGE WILLIAM M.
ERLBAUM RESPECTFULLY PETITIONS
FOR A WRIT OF CERTIORARI TO
REVIEW THE JUDGMENT IN THIS
CASE OF THE COURT OF APPEALS
OF THE STATE OF NEW YORK. « « © «© «
QUESTION PRESENTED. ..+«+s+s#s6s-
OPINIONS BELOW. « . . + . . . . . ° -_
JURISDICTION. o . . . . . * . . . . a
CONSTITUTIONAL PROVISION INVOLVED . .
STATEMENT OF THE CASE .. «© © » © @ »
REASON FOR GRANTING THE WRIT. ... .
I. THE COURT SHOULD GRANT CERTIORARI
TO REAFFIRM THAT CERTAIN CRIMES,
SUCH AS PROSTITUTION, TRIGGER THE
RIGHT TO A JURY TRIAL NOTWITH-
STANDING A MAXIMUM SENTENCE OF
SIX MONTHS OR LESS. THE COURT'S
DICTUM TO THE CONTRARY IN
CODISPOTI V. PENNSYLVANIA
SHOULD BE CLARIFIED .......
A. The Traditional Rule. . ae
19
B. The Current Status of the Rule.23
waite
C. Prostitution Is a Serious
Offense. . . . . . . . . .
II. THE CODISPOTI DICTUM HAS CAUSED
THE NINTH AND TENTH CIRCUITS AS
WELL AS OTHER COURTS TO DIVIDE
ON THE ISSUE OF WHETHER A JURY
IS GUARANTEED FOR CERTAIN
CRIMES PUNISHABLE BY A MAXIMUM
TERM OF SIX MONTHS OR LESS. . .
CONCLUSION . . . . . . . . . . . . .
APPENDIX
Opinion of New York Court of Appeals
Summary Affirmance of the Appellate
Division, First Department. ... .
Opinion of the Special Term, Part I,
New York County Supreme Court...
32
. 40
-la-25a
.26a-27a
.28a-43a
Opinion of Petitioner in People v. Link,
New York County Criminal Court...
-iii-
TABLE OF AUTHORITIES
Cases Pace
Baldwin v. New York, 399 U.S.
G6 42970) a 6 ee ae ee we le ee ee eee ee
24, 26, 33,
35, 36, 38
Beacon Theatres v. Westover,
359° 6.0, “Sao cla eeee eed eo aoe ce ee ee ee
Bloom v. Illinois, 391 U.S.
Bee: CR OOR) os 6-6" 6 aa ew er Cee eee
Brady v. Blair, 427 F. seit 5
(§.D.0h. 1976) . « « « ale @ wb werent
Callan v. Wilson, 127 U.S.
SAG ieee bk awe eee ee 8 ee Caer
Cheff v. Schnackenberg, 384
Dats: SER. CAMEL. o1668 SCE 0 ee ee Be > eo eee
City of Tampa v. Ippolito, 360
So.2d 1316 (2nd Dis. Fla. 1978) ..... 34
Codispoti v. Pennsylvania, 418
U.S. 506 (1974) . . . . 7 o . . . . . . . passim
Commonwealth v. Mayberry, 327
A.24 86 (Pa.Sup.Ct. 1974) ..ccececsvec
District of Columbia v. Clawans,
see U8. Gav taeeer-s 68 <) s .« 6.2: 6» ane ee
District of Columbia v. Colts,
San - Uses GS GReeee « 6 6 6 eee es 6 U6 eee ee
36, 38
Duncan v. Louisiana, 391 U.S.
8 rr a a oe er a
12, 13, 23, 24,
26, 27, 29, 38
Frank v. United States, 395
om Set eae ee ee eer ae ee
Haar v. Hanrahan, 708 F.2l
1387 (10th Cis. T9633) «+ 2 6 « *
Justiniano Matos v. Gaspar
Rodriguez, 440 F.Supp. 673
(D.P.R. 1976) 7 . . . . . 7 7 .
Ludwig v. Massachusetts, 427
ps 618 (1976) ° . . . . . . .
Morgenthau v. Erlbaum, 445
N.Y.S.2a 977 (Spec.Term
N.Y.Cty. 1981) . . . . ° . a . .
Muniz v. Hoffman, 422 U.S.
454 (1975) . . . . . . . . . . .
Natal v. Louisiana, 139
Osos 621 (1891) . . . . . . . .
People v. Link, 436 N.Y.S.2d
$61 (Cr.Ct. N.¥.Cty. 1981) ...
Petition of Berkowitz, 232
N.E.2d 72 (1967) . . . . o 7 . .
R. v. F., 113 N.J. Super.
396 (1971) . . . . . . . . . 7 .
Schick v. United States,
195 U.S. 65 (1904) . . 7 ° . ° .
Solem v. Heln, U.Ss8.
51 U.S.L.W. 5019 (June 28, —T583)
State In Interest of C. v.
Platte County, 638 P.2d
165 (Wyo. 1981) 2 . . ° . . ° . a
Page
ai, 27
32, 33
- v=
Page
State v. Owens, 54 N.J.
153, 254 A.2d 97 (N.J. Sup.
5 | | eee cr Rae
State v. Tenriero, 185 N.J.
Super. 519, 444 A.2d 623
Meds Bapek. Ce. LCL on 3 So eee eee
State v. Young, 194 Neb.
544, 234 N.W.2d 196
(Neb. 1975) . 7 . . . . . . . . . . . . . 33
Taylor v. Hayes, 418 U.S.
SUe (1974) 2. ew ct te lt st ot cet ee eee
United States v. Craner,
Gea F.26 23 (908 Cir. 1961) « « és sree
United States v. Newberne
427 F.Supp. 361 (E.D. Ke.
1977) . . . . . . a . . . . . . . + . . . ey
United States v. Sanchez-
Mesa, 547 F.2d 461 (9th Cir.
1976) . . . . . . . . . . . . . . . . _ 36
United States v. Smyer, 596
U.S. F.2d 939 (10th Cir.
1979); cert. den. 444 (U.S.
Ses C2979) 2 0 st a ec es ok OO SS Oe
United States v. Stewart,
See 7.28 S04 (6th Gis. i976). «6s 2 hee
United States v..Woods, 450
F.Supp. 1335 (D.ma. 1978) 0. . wn Le Be
Constitutional Provisions
Sixth Amendment of the United
States Constitution. ....
Statutes
8 U.S.C. 1182(a) (12)...
8 U.S.C. 1251(a) (12) .
ae Shatbales GOED) 6. co -e aie
26 U.S.C. F257{(3). . »
New York Penal Law
$70.15(2). . «© © © we wow wo
$230.00. . 2. «2 © ws sw wo
Criminal Procedure Law
§340.40(2) ....
$430.20 ween veeneveees
Civil Practice Law and Rules
$103(c). 1.16 6 « »
S30Gk. 2c ww he ee ew
Article 78 . . « « « «© » »
Other Authorities
New York State Assembly Bill
#4476 . 28
-vii-
Milman, “New Rules for the Oldest
Profession: Should We Change Our
Prostitution Laws?" 3 Harvard
Women's Law Journal l p. l
(Gearing 1960)... « « « 0 «-« « *
Stern and Gressman, Supreme Court
Practice,
Weinstein,
"Extraordinary Writs,"
Korn and Miller, New
York Practice, §300G.20(g) (1982)
. . . . 30
(1976) .3
. 7 . “a
a 2a
CRIMINAL COURT JUDGE WILLIAM M.
ERLBAUM RESPECTFULLY PETITIONS
FOR A WRIT OF CERTIORARI TO
REVIEW THE JUDGMENT IN THIS
CASE OF THE COURT OF APPEALS
OF THE STATE OF NEW YORK.
QUESTION PRESENTED
l. Whether the New York Court of
Appeals' adoption of an inflexible dividing
line--a maximum authorized sentence of more
than six months--as the sole criterion for
triggering the right to a jury trial, denies
Sixth Amendment rights to a woman accused of
prostitution who faces a three-month maximum
sentence.
OPINIONS BELOW
The opinion of the New York Court of
Appeals (App. at la-25a) is not yet reported.
That opinion affirmed two lower court rulings
that the defendants, who were accused of
prostitution, were not entitled to a jury
trial. The opinion of the Appellate Division
(App. at 26a-27a) summarily affirmed the opin-
ion of a Special Term, Part I, of the Supreme
ates
Court (App. at 28a-43a) which is reported in
Morgenthau v. Erlbaum, 445 N.Y.S.2d 997
(Spec. Term. N.Y. Cty. 1981).
The petitioner in this case is a New
York City Criminal Court Judge William M.
Erlbaum. } The opinion in petitioner's court
1
Petitioner Erlbaum's standing to pursue this
issue before the Court, though anomalous for a judge,
is established by the New York Court of Appeals'
decision below. (App. at 19a-20a) That ruling held
that a declaratory judgment proceeding under Civil
Practice Law and Rules § 3001 was the procedural
mechanism available to the respondent district attorney
to challenge Judge Erlbaum's ruling in the Criminal
Court. Thus, Judge Erlbaum's order granting the
defendants a jury trial is directly in issue.
In fact, by dismissing the criminal defendants
as outside the scope of the declaratory judgment, the
Court of Appeals found that petitioner Erlbaum is
the only party to the controversy against whom the
declaratory judgment operates. (App. at 18a, 24a)
Under New York law a declaratory judgment is the equiva-
lent of any other final judgment with full res judicata
and collateral estoppel effects. In this case,
declaratory judgment is also the only substitute for
the original writ of prohibition which the respondent
sought. (App. at 4a-20a) Thus, enforcement against
Judge Erlbaum could include the full range of
judicial mechanisms, none of which would be available
had petitioner's original order been merely appealable.
See Weinstein, Korn and Miller, New York Practice
§ 3000.20(g) (1982).
(fn. cont. on next page)
o3eo
is reported in People v. Link, 436 N.Y.S.2d
581 (Cr. Ct. 1981). It holds that the Sixth
Amendment guarantees a jury trial in the case
of an accusation of prostitution which, not-
withstanding a maximum sentence of less than
six months, is a "serious" offense under
"objective criteria, chiefly the existing laws
and practices in the Nation." (quoting from
Duncan v. Louisiana, 391 U.S. 145, 176 (1968)
(App. 67a, at fn. 54.)
(fn. cont. from preceding page)
Moreover, petitioner's order to grant the
criminal defendants a jury trial was originally attacked
by respondent by means of an extraordinary writ under
New York Civil Practice Law and Rules Article 78.
Conversion to a declaratory judgment was in form only.
Thus, this case proceeded in much the same manner as
many that have been decided by this Court under its
authority to review extraordinary writs issued against
district courts. See, e.g., Beacon Theatres v. Westover,
359 U.S. 500, 511 (1959) (reviewing mandamus denial
seeking a jury trial); See also, Stern and Gressman,
Supreme Court Practice, "Extraordinary Writs,"
p. 634-35 (1976).
~ =
JURISDICTION
The judgment of the New York Court of
Appeals was decided on June 7, 1983. Jurisdic-
tion is conferred on this Court by 28 U.S.C.
1257 (3)
CONSTITUTIONAL PROVISION INVOLVED
The Sixth Amendment provides, in
pertinent part:
In all criminal prosecutions the
accused shall enjoy the right to
a speedy and public trial, by an
impartial jury of the State and
district wherein the crime shall
have been committed....
STATEMENT OF THE CASE
Carol Link and Debra Meltsner were
charged with prostitution? which, in New York,
is a misdemeanor carrying a maximum sentence of
three months. > Neither had been arrested or
2
These defendants were charged pursuant to New
York Penal Law §230.00 which states: "A person is
guilty of prostitution when such person engages or
agrees or offers to engage in sexual conduct with
another person for a fee."
3
New York Penal Law $70.15(2).
-5-
convicted for prostitution previously and both
pleaded not guilty.
When they appeared before petitioner,
Criminal Court Judge William M. Erlbaum, they
moved for a jury trial contending that New
York's Criminal Procedure Law (hereafter
"C.P.L.") §340.40(2) violated the Sixth
Amendment insofar as it precluded a jury trial
in their cases.
C.P.L. §340.40(2) regulates the right to
trial by jury in New York in misdemeanor cases.
That section, in pertinent part, directs 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....
In response to the defendants' motion,
for a jury trial, petitioner found that
-6-
prostitution is a "serious" rather than
"petty" offense which, notwithstanding the
authorized maximum penalty, triggers the right
to a jury trial under the case law of this
Court interpreting the scope of the Sixth
Amendment's jury trial guarantee. (App. at
49a-52a) See Point I.
Judge Erlbaum based his decision on the
prevailing practice in 43 states, including New
York, 4 each of which guarantees jury trials for
persons accused of prostitution. Moreover,
Judge Erlbaum reviewed historical and current
criteria concerning the objective seriousness
of the offense of prostitution, concluding that
for society, as well as for the person accused
of prostitution, the consequences of a convic-
tion on such a charge are so objectively
4
Pursuant to C.P.L. §340.40(2) all persons
accused of misdemeanors outside the city limits of New
York City are entitled to jury trials.
~
devastating that the crime must be considered
serious enough tc warrant a jury trial.
(App. at 53a-68a)
5
The equal protection issue raised by C.P.L.
§340.40(2) which precludes jury trials for defendants
accused of certain misdemeanors including prostitution
within the city limits of New York, but guarantees
jury trials to similar defendants elsewhere in the
State, was not reached by Judge Erlbaum in his
opinion. (App. at 68a) This issue has not been
raised on appeal or in this petition, as petitioner
believes that the jury trial right in this case is
dependent upon the scope of the Sixth Amendment,
not the guarantee of equal protection. If outside
the Sixth Amendment's protection, then administrative
needs might well justify the disparity of treatment
inherent in CPL §340.40(2). If within the scope of
the Sixth Amendment, the jury trial right is, in any
event guaranteed. See Duncan v. Louisiana, 391 U.S.
145, 160 (1968):
[T]he possible consequences to
defendants from convictions for
petty offenses have been thought
insufficient to outweigh the
benefits to efficient law enforce-
ment and simplified judicial
administration resulting from
the availability of speedy and
inexpensive nonjury adjudications.
o8«
With no available interlocutory appeal
of petitioner Erlbaum's ruling, ° District
Attorney Robert M. Morgenthau, respondent
herein, sought review of the decision in
Special Term of the Supreme Court pursuant to
a writ of prohibition, ’ which was subsequently
converted to the instant declaratory judgment
action. © (App. at 33a)
In this separate proceeding the District
Attorney's office argued that a fixed dividing
line--a six-month maximum authorized sentence--
is the sole factor determinative of the Sixth
Amendment's jury trial right. According to
this view, all crimes with authorized sentences
of six months or less are "petty" and do not
trigger the right to a jury trial; whereas,
6
See, CPL § 450.20.
7
Article 78 of the Civil Practice Law and
Rules (hereafter CPLR).
8
See, CPLR §§3001 and 103(c).
a:
only defendants accused of crimes with potential
sentences of more than six months are accorded
the right to a jury trial. The District
Attorney thus argued that the Sixth Amendment's
jury trial guarantee is solely dependent on
the State legislature's classifications of
crimes, as manifested by the statutorily
authorized penalties.
The Special Term of the State Supreme
Court accepted this argument, issuing a
Geclaratory judgment against Judge Erlbaum and
the defendants Link and Meltsner to the effect
that C.P.L. §340.40(2) was constitutional.
(App. at 4la-42a) By summary affirmance the
Appellate Division, First Department agreed
with the Special Term. (App. at 26a-27a).
The Court of Appeals affirmed, ruling
in its opinion that the maximum sentence
authorized by the State legislature is the
sole factor which determines whether a crime
is serious or petty under the Sixth Amendment.
-l10-
(App. at 20a-25a) The court adopted a fixed
dividing line of a six month maximum sentence,
deferring without qualification to the
legislature's sentencing scheme. Thus, the
Court of Appeals foreclosed consideration of
the question of whether prostitution, or any
other crime with a maximum sentence of six
months or less, can ever be considered
"serious" under the Sixth Amendment jury trial
guarantee.
oij-
REASON FOR GRANTING THE WRIT
The New York Court of Appeals' decision
should be reviewed because it relied entirely
and improperly upon dictum in Codispoti v.
Pennsylvania, 418 U.S. 506 (1974), which
states:
[O]ur 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 carry-
ing a sentence of six months or
less are petty crimes. 418 U.S.
at 511-512.
As illustrated by the decision below,
that statement, by a plurality of this Court,
has spawned confusion over the jury trial right
in criminal cases with maximum authorized
sentences of six months or less. Notwithstand-
ing the unequivocal import of the dictum in
Codispoti, its context reveals that this
statement does not purport to overrule almost
a century of this Court's precedent which was
summed up six years earlier, in Duncan v.
Louisiana:
Of course the boundaries of the
petty offense category have always
been ill-defined, if not ampula-
tory. In the absence of an
explicit constitutional provi-
sion, 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. 391 U.S. at
160.
The ambiguity in the Court's view on
this subject has spawned a conflict among the
state and lower federal courts on whether the
Sixth Amendment can ever require a jury
trial in the case of a person accused of a
crime for which the maximum authorized penalty
is six months or less. See, ©.g-, United
States v. Craner, 652 F.2d 23 (9th Cir. 1981);
United States v. Woods, 450 F. Supp., 1335
(D. Md. 1978). See Point II, below. Though
Duncan v. Louisiana, 391 U.S. 145 (1968)
and Baldwin v. New York, 399 U.S. 66 (1970)
-l13-
reiterated the traditional rule that the
maximum authorized sentence is one, albeit the
most important factor, in triggering the Sixth
Amendment's jury trial guarantee, the dictum
in Codispoti, has clouded this doctrine.
The instant case is one of many in
which courts have erroneously fixed exclusively
on the Codispoti statement, barring all
consideration of the "objective criteria,
chiefly the existing laws and practices in
the Nation," Duncan v. Louisiana, 391 U.S. at
161, in evaluating whether conviction for a
crime carrying a maximum sentence of less than
six months could ever warrant a jury trial.
See Point II. Like these other courts, the
New York Court below, focused only upon the
legislatively determined maximum sentence of
three months in summarily dismissing petitioner's
ruling. Notably, the Court of Appeals ignored
the fact that 43 states guarantee jury trials
for persons accused of prostitution as well as
-14-
the evidence that a conviction for prostitution
has special serious consequences for society
and the defendant.
Furthermore, in seizing upon the above
quoted statement from Codispoti, the Court of
Appeals ignored the disclaiming footnote in
Codispoti which prominently concedes that a
majority of this Court has never indicated
agreement with the "fixed dividing line" dictum.
9
Footnote 4 in the Codispoti majority opinion
states:
"In tracing the lineage of the six-
month dividing line for purposes of
ascertaining whether a jury trial
is required under the Sixth Amendment,
Mr. Justice Rehnquist's dissent
implicitly questions the authenticity
of this rule. Putting aside whether
the ‘constitutional rule of Bloom'
ever 'evolved' into the present rule,
it is sufficient to note that although
only three Members of the Court explicitly
embraced the six-month demarcation point
in Baldwin v. New York, 399 U.S. 66
(1970), Mr. Justice Black and Mr. Justice
Douglas concurred in the judgment.
While reading the Sixth Amendment to
require a jury trial for "all crimes,"
they expressed the view that imprison-
ment for more than six months would
certainly necessitate a jury trial.
(fn. cont. on next page)
9
-15>-
Thus, the opinion in the Court of
Appeals represents a significant misapprehen-
sion of the import of the Court's precedent.
As recently as the close of last term, the
Court stated in a related case:
In short, Baldwin clearly demon-
strates that a court properly may
distinguish one sentence of
imprisonment from another. It
also supports our holding that
courts properly may look to the
(fn. cont. from preceding page)
Five Members of the Court out of the
eight participating therefore agreed
that, at the very least, the Sixth
Amendment requires a jury trial in
all criminal prosecutions where the
term of imprisonment authorized by
statute exceeds six months." 418
U.S. at 512;
See also United States v. Woods, 450 F. Supp. 1335,
1341 (D. Md., 1978) for a complete analysis of
the import of Justice White's dictum in Codispoti,
concluding that the statement was limited to the
crime of criminal contempt at issue in Codispoti.
Notably, Justice Douglas concurs with Justice ite in
Codispoti even though in Baldwin it is clear that
Justice Douglas would guarantee a jury in every criminal
case. 399 U.S. at 74-76. Thus, at least Justice
Douglas could not have taken the Codispoti dictum as
precluding a jury trial for all crimes drawing six
months or less.
~1¢=
practices in other jurisdic-
tions in deciding where lines
between sentences should be
drawn. Solem v. Helm, 0.8.
__51 U.S.L.W. 5019, 5024,
June 28, 1983.
For the sake of clarifying this
confusion in the lower courts, the Court
should settle once and for all that there
exist instances when a jury trial must be
provided in cases of certain serious crimes
with maximum sentences of six months or
less.
leo
I.
THE COURT SHOULD GRANT CERTIORARI
TO REAFFIRM THAT CERTAIN CRIMES ,
SUCH AS PROSTITUTION, TRIGGER THE
RIGHT TO A JURY TRIAL NOTWITHSTANDING
A MAXIMUM SENTENCE OF SIX MONTHS OR
LESS. THE COURT'S DICTUM TO THE
CONTRARY IN CODISPOTI V. PENNSYLVANIA
SHOULD BE CLARIFIED.
In Codispoti v. Pennsylvania the Court
stated that:
[O]ur 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, 418 U.S. at
Sii~Si2.
This dictum characterizing the distinc-
tion between "petty" and "Serious" offenses as
defined by a fixed dividing line of a six
month maximum sentence for purposes of deter-
mining whether a jury trial will be provided,
represents a marked departure from a
century of the Court's precedent. Nonetheless,
neither in Codispoti or thereafter has the
Court indicated that it has altered the
-18-
traditional rule assuring the right to a jury
for the trial of all "serious" offenses, no
matter how short the maximum sentence. Thus,
substantial confusion exists as to the jury
trial right with respect to crimes carrying a
maximum sentence of six months or less. This
confusion has led several courts, including
the Court of Appeals below, to abandon this
Court's traditional rule in favor of the
bright-line test which Codispoti announced.
See Point II.
The origins of the traditional rule are
instructive with regard to the confused present
posture of this aspect of the jury trial right.
The development of the right demonstrates that
its formulation over the last century has been
largely dependent on the maximum sentence when
the maximum exceeds six months; however, when
set at less than six months, the maximum term
has been only one indication of whether a
crime is, nonetheless, classified as "serious"
for Sixth Amendment purposes.
=i@—
A. The Traditional Rule
Taken literally, the Sixth Amendment
does not admit of any exception to the right
to trial by jury. However, in a series of
cases beginning with Callan v. Wilson, 127 U.S.
540 (1888), the Court determined that the
denial of a jury trial for certain offenses--
those that are characterized as "petty"--
does not violate the Sixth Amendment.
In the course of this development, a
clear and simple structure emerged for dis-
cerning whether an offense was petty for the
purposes of the Sixth Amendment. The Court
first inquired whether the offense was in and
10
of itself of a serious nature. If it was
10
The analysis of the first question, whether the
offense was serious by its nature, turned on three
considerations: (1) whether the crime was indictable
at common law; (2) whether the offense was malum in se;
and (3) whether the offense involved moral delinquency
or turpiture. Crimes indictable at common law were
regarded as serious, despite the insignificance of
(fn. cont. on next page)
-20-
not, the Court then considered whether the
sentence imposed was sufficiently lengthy to
remove the offense from the category of what
would otherwise be a petty crime.
A more recent series of cases involving
criminal contempt charges has reaffirmed the
Court's traditional approach. In these cases
(fn. cont. from preceding page)
the penalty attached. See Callan v. Wilson, 127 U.S.
540, 555-557 (1888). Crimes mala in se were similarly
deemed serious despite the insignificance of the
sentence attached. See District of Columbia v. Colts,
282 U.S. 63, 73-74 (1930); Schick v. United States,
195 U.S. 65, 67 (1904); Natal v. Louisiana, 139 U.S.
621, 624 (1891). And crimes assessed for their moral
delinquency were analyzed on an ad hoc basis. See
District of Columbia v. Clawans, 300 U.S. 617, 625
(1937); Schick v. United States, 195 U.S. 65,
67 (1904). In Schick the Court stated:
The truth is the nature of the offense,
and the amount of punishment prescribed...
determine whether it is to be classed
among serious or petty of fenses--whether
among crimes or misdemeanors. 195 U.S.
at 68.
-2l-
the Court carefully evaluated the intrinsic
qualities of the offense of criminal contempt
in determining the alleged contemnor's right
to trial by jury. The result of this analysis
is that the Court has determined that "the
nature of criminal contempt, an offense sui
generis, does not, by itself, warrant [trial
by jury],”" Cheff v. Schnackenberg, 384 U.S.
373 (1966), and "criminal contempt is a petty
offense unless the punishment makes it a
serious one." Bloom v. Illinois, 391 U.S. 194,
197 (1968).
While these cases establish that a maxi-
mum sentence exceeding six months guarantees a
right to trial by jury, Bloom v. Illinois, 391
U.S. at 210-211; Frank v. United States, 395
U.S. 147, 148 (1968); Codispoti v. Pennsylvania,
418 U.S. 506, 512 (1974), the contempt cases
have not addressed whether a lesser penalty
in the case of other offenses should bar the
courts from treating a morally objectionable
-22-
offense, such as prostitution, as serious and,
therefore, deserving of the right to trial
by jury.
That issue was addressed in District of
Columbia v. Colts, 282 U.S. 83 (1930). The
defendant in Colts was charged with reckless
driving, an offense punishable by a fine of
only $25 to $100 and imprisonment ranging
from ten to thirty days. Id. at 71-72.
Despite the modesty of these penalties, the
Court refused to characterize the offense of
reckless driving as petty; it declared the
offense to be "a crime within the meaning of
the third article of the Constitution--and as
such within the constitutional guaranty of
trial by jury." Id. at 74. A concrete
assessment of the offense's intrinsic
qualities formed the basis of the Court's
a23e
decision:
An automobile is, potentially,
a dangerous instrumentality,
as the appalling number of
fatalities brought about every
day by its operation bear dis-
tressing witness. To drive
such an instrumentality through
the public streets...so recklessly
"as to endanger property and
individuals" is an act of such
obvious depravity that to
characterize it as a petty
offense would be to shock the
moral sense. 282 U.S. at 73.
B. The Current Status of the Rule.
In marked contrast to the bright-line
test based on the maximum sentence set forth
in the Codispoti dictum, six years earlier,
the Court in Duncan v. Louisiana, 391 U.S. 145
(1968) acknowledged the inappropriateness of
deferring to lines drawn by legislative enact-
ment in evaluating the seriousness of a crime.
Rather, the Court recognized the judiciary's
ultimate responsibility to decide whether an
offense is sufficiently serious to invoke
a%h~
the constitutional guarantee of a jury trial.
The Court in Duncan wrote:
Of cou.se the boundaries of the
petty offense category have
always been ill-defined, if not
ambulatory. In the absence of
an explicit constitutional pro-
vision, the definitional task
necessar.ly 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) 391 U.S at 160.
See also, Baldwin v. New York, 399 U.S. 66
68 (1970).
Undoubtedly, the Codispoti dictum has
cast a cloud over the Duncan approach. See
Point II, infra. However, the footnote to
test, quoted ante at pp. 14-15, remains
a28e
substantial support for the traditional rule.
Notably, as recently as last term the
Court reaffirmed this approach without
11
Similarly, the inferences from significant
statements in three cases decided with and after
Codispoti, display continued support for the Court's
traditional rule. In Taylor v. Hayes, 418 U.S. 488
(1974), decided the same dey as Codispoti, the
Court evaluated criminal contempt once again and
Stated that it "'is not 2 crime of the sort that
requires the right to jury trial regardless of
the penalty involved.'" 418 U.S. at 496 citing
Bloom v. Illinois, 391 U.S. 194, 211 (1968)
(emphasis added). Subsequently, in Muniz v.
Hoffman, 422 U.S. 454 (1975) the Court referred
to criminal contempt as "in and of itself and
without regard to the punishment imposed" not a
"serious" offense. 422 U.S. at 476. And, finally,
in Ludwig v. Massachusetts, 427 U.S. 618 (1976),
the Court noted that a petty offense is "usually
defined by reference to the maximum punishment
that might be imposed." 427 U.S. at 624-25
(emphasis added).
= *6<
mentioning Codispoti, In Solem v. Helm,
U.S. _, 51 U.S.L.W. 5019 (June 28, 1983),
the Court held that the evaluation
of punishment under the Eighth Amendment is a
judicial function, not requiring deference to
legislative judgments. In so doing, the
majority relied on Duncan and Baldwin's Sixth
Amendment analysis as described above:
In short, Baldwin clearly demon-
strates that a court properly
may distinguish one sentence of
imprisonment from another. It
also supports our holding that
courts properly may look to
the practices in other jurisdic-
tions in deciding where lines
between sentences should be drawn.
Solem v. Helm, U.S.
June 28, 1983, 51 L.W. 5019, 5024.
In the instant case, the opinion of the
Court of Appeals declined to engage in the
evaluative function assigned to it by this
Court. Instead, it woodenly applied the
literal interpretation of the Codispoti dictum
in settling upon the six month bright-line
test. This application of the rule precludes
he
judicial assessment of seriousness based upon
the grave social, moral, economic, and
collateral legal consequences of the specific
conviction at issue.
Judge Erlbaum's opinion in the
Criminal Court conclusively demonstrates
that the crime of prostitution
satisfies the criteria of a serious offense.
People v. Link, supra (App. at 49a-67a)
In evaluating prostitution, the petitioner
followed the dictates of this Court, assessing
the "objective indications of the seriousness
with which society regards the offense."
Frank v. United States, 395 U.S. 147, 148
(1969) as well as the "objective criteria,
chiefly the existing laws and practices in the
Nation." Duncan v. LouiSiana, 391 U.S. at
161.
a%Qe
C. Prostitution Is a Serious Offense.
The incidence of prostitution has
inspired virtually every form
of criminal sanction known to man. Histor-
ically, prostitutes were stoned. More
recently, prostitution has engendered shrill
outcries from New York community groups for
severe penalties, and the respondent has
called for mandatory imprisonment for
prostitution. *?
Currently, federal laws provide for the
exclusion and deportation of alien prostitutes,
and prohibit trade in prostitution. +?
State laws prohibiting all facets of the
prostitution trade have proliferated since
the turn of the century. Twenty-five states
impose penalties for the act of prostitution
of nine months or more, and of the remaining
12
See proposed New York State Assembly Bill #4476.
13
See 8 U.S.C. §1182(a)(12) and 1251(a) (12)
(1976); 18 U.S.C. § 2421 (1976).
= 20—
25 that do not, 17 guarantee a jury trial to
persons accused of prostitution. Thus, 43
states, including New York, outside of New
York City, guarantee jury trials for the
crime of prostitution. +?
Furthermore, the prostitute may lose
custody of her children, visitation rights,
14
Petitioner in People v. Link, supra (App. at
68a-69a) demonstrates that even outside of New York
City, where persons accused of prostitution are
entitled to jury trials, defendants simply do not
often demand juries. Thus, the fear that New York
City's Criminal Court will be overwhelmec with jury
demands has no basis in fact.
Furthermore, there is every reason to believe
that few jury demands will be made except by women,
such as the defendants in the instant case, who have
never been accused of prostitution previously.
Professional prostitutes who are regularly arrested
for this offense, as the statistics cited in the
Link opinion demonstrate, simply plead guilty.
On the other hand, innocent persons accused of
prostitution desperately need the benefit of the con-
stitutional "reluctance to entrust plenary powers
over the life and liberty of the citizen to one
judge...." Duncan v. Louisiana, 391 U.S. at 156.
Those falsely accused must rely upon every legal
protection to distinguish themselves from the
thousands of women who are routinely processed through
New York City's Criminal Court.
—
and the right to adopt children. ?° Prostitutes
are stigmatized, branded, and deemed presump-
tive carriers of venereal disease by virtue of
their legal status. Prostitutes are swept off
the streets in police dragnets, blamed
as the cause of declining tourist trade,
associated with increases in crime and nar-
cotics, exploited by pimps, victimized by
customers and more often than with
any other offense, introduced into a life of
crime that culminates with far more serious
offenses. *®
These consequences and more are the
15
See e.g., State In Interest of C. v. Platte
County, 638 P. 2d 165 (Wyo. 1981); R. v. F., 113
N.J. Super. 396, 409-10 (1971), Petition of
Berkowitz, 232 N.E.2d 72 (1967).
16
See, Milman, "New Rules for the Oldest
Profession: Should We Change Our Prostitution Laws?"
3 Harvard Women's Law Journal 1 p. 1 (Spring, 1980).
aShes
aspects of prostitution that set it apart
from other misdemeanors, branding the crime
with a scarlet letter. If ever the accused
need the protection of a jury, it is in
the case of women, such as the defendants
here, who are accused of prostitution for
the first time.
The Court of Appeals, however, failed
to reach this level in considering the issue
before it, opting for a bright-line solution
to the issue of when a jury trial is available.
Because that issue is in a state of confusion
in the aftermath of Codispoti, and because
review of the unavailability of a jury trial
for a person accused of prostitution is appro-
priate, petitioner believes that this Court
should grant a writ of certiorari.
«3 Qu
Il.
THE CODISPOTI DICTUM HAS CAUSED
THE NiNw'H AND TENTH CIRCUITS AS
WELL AS OTHER COURTS TO DIVIDE
ON THE ISSUE OF WHETHER A JURY
IS GUARANTEED FOR CERTAIN
CRIMES PUNISHABLE BY A MAXIMUM
TERM OF SIX MONTHS OR LESS.
Despite substantial support for the
vitality of the traditional rule concerning
the right to a jury trial in cases of
crimes drawing six months or less, several
courts have adopted differing views of the
current state of the law after the
Codispoti dictum. In fact, the Tenth
Circuit, after reviewing the more recent
applicable precedent, invited review by
this Court, in the situation of a jury trial
denied to a defendant facing two concurrently
imposed six month sentences:
[W]e conclude that an expansion
of the definition of a "serious
offense" is a matter better left
to the Supreme Court. Furthermore,
given the absence of Supreme Court
gu dance on this issue, we prefer
the interpretation that more
narrowly confines...[the jury
trial right]. Haar _v. Hanrahan,
-708 F.2d 1547, 1553 (10th Cir. 1983).
=,
So strong is the Tenth Circuit's view
in support of the bright-line rule, that not
even consecutive six month maximum sentences
will trigger the jury trial right if the
actual sentence imposed is six months or
less. Haar v. Hanrahan, supra; See also
United States v. Smyer, 596 F.2d 939, 942
(lOth Cir. 1979); cert. den. 444 U.S. 843
(1979).
The Nebraska Supreme Court, as well, has
narrowly circumscribed the jury trial right,
precluding it for all crimes punishable
by six months or less. In so doing the
Nebraska court, like the New York courts in
the instant case, relied specifically on the
Codispoti dictum, ignoring the critical
footnote as well as later case law from this
Court. State v. Young, 194 Neb. 544, 234
N.W. 2d 196, 197 (Neb. 1975). And, the Second
District Court of Appeals in Florida has
agreed. Its view, based upon Baldwin after
Codispoti, is that the bright-line rule
admits of no exception. City of Tampa v,
Ippolito, 360 So 2d 1316 (2nd Dis. Fla,
1978),
Similarly, Pennsylvania, New Jersey,
and now New York, in the instant case, have
adopted the six month bright-line. Pennsyl-
vania has done so specifically on the basis
of the Codispoti dictum for all criines
drawing six months or less. Commonwealth +,
Mayberry, 327 A. 2d 86 (Pa. Sup. Ct. 1974),
And, New Jersey has adhered to an absolute
dividing line of six months beginning even
before Codispoti, State v, Owens, 54 N.J,
153, 254 A. 2d 97 (N.J. Sup. Ct. 1969);
State v, Tenriero, 183 N.J. Super. 519,
444 A, 2d 623 (N.J. Super. 1981).
Finally, in Justiniano Matos v, Gaspar
Rodriguez, 440 F, Supp. 673 (1976) a district
court in Puerto Rico characterized District of
Columbia v, Colts, Supra as overruled by
-35-
Baldwin. That Court asserts that a
bright-line test of a maximum sentence of
six months has been settled by this Court.
In stark contrast to the Tenth Circuit
and these other courts, the Ninth and Sixth
Circuits, and at least three district courts,
have taken a position in favor of evaluating
the “objective criteria" before declaring
"petty" a crime which has a maximum sentence
of six months or less.
In Unitea ocates v. Craner, 652 F.2d 23
(9th Cir. 1981) driving under the influence
of alcohol in a National Park, which is
punishable by up to six months or a $500 £..ne,
was found to require a jury trial under the
Sixth Amendment. In reaching this decision
the Court carefully analyzed the background
of the jury trial right, as well as the specific
import of Baldwin and Codispoti. The court
found that the Sixth Amendment cannot be
= 360
defined by the legislatively set maximum
sentence alone. "Otherwise, the constitu-
tional right to a jury trial would exist only
at the sufference of the legislative branch."
652 F.2d at 25. Moreover, the court found
District of Columbia v. Colts, supra, to
remain good law in light of numerous oppor-
tunities for this Court to overrule it. The
Ninth Circuit concluded:
To gauge the seriousness of
an offense, the Supreme Court
has in recent years looked to
the authorized penalty and to
tne “relevant rules and practices
followed by the federal and state
regimes." 652 F.2d at 26, citing
Muniz v. Hoffman, 422 U.S. at 476,
(emphasis in original)
See also United States v. Sanchez-Mesa,
547 F, 2d 461, 463 (9th Cir, 1976). ("Baldwin
did not hold that the maximum potential
sentence was the sole criterion by which to
determine whether an offense was petty....")
The Sixth Circuit, as well, has engaged
in an analysis of the seriousness of an
offense that proceeds beyond evaluation of a
-37-
maximum sentence of six months or less.
In United States v. Stewart, 568 F.2d 501
(6th Cir, 1978) an assault drawing a maximum
sentence of six months was found to be petty
based upon a careful analysis of the under-
lying act, the culpability required and a
reading of Blackstone's Commentaries on the
historical underpinnings of the offense.
In three district court cases this
Same approach was followed to provide jury
trials to persons accused of driving while
intoxicated and to deny a jury in an assault
case, United States v. Woods, 450 F.Supp.
1335 (BD, Md. 1578); United States v. Newberne,
427 F. Supp. 361 (E.D. Ke. 1977); Brady v.
Blair, 427 F. Supp. 5 (S.D. Oh. 1976). In
United States v. Woods, supra at 1340-41, the
Court specifically analyzed the Codispoti
dictum characterizing Justice White's language
as limited to the crime of criminal contempt
which was at issue in that case. The court,
=38-
in support of this view, cited to the Codis-
roti footnote, quoted above at pp. 14-15,
as well as to Taylor v. Hayes, supra, which
was decided the same day as Codispoti and
also authored by Justice White. The Court
went on to analyze drunk driving, concluding,
as did this Court in Colts, that it is a
serious offense.
In sum, there remains substantial
confusion as to the meaning of Duncan and
Baldwin in light of the Codispoti dictum.
It would seem that courts are divided and
that a trend will be set towards an
erroneous interpretation of these cases
by the New York Court of Appeals in the
instant case.
Adoption, virtually without discussion
by the New York Court, of the bright-line test
is not the proper way in which courts should
cede blanket deference to legislative judg-
ments on Sixth Amendment rights. What if the
= 39=
New York legislature set a manslaughter
sentence at six months? Could a jury trial
right be denied an accused? Should not the
fact that 43 states guarantee persons accused
of prostitution the right to a jury trial
have been considered under this Court's
precatory language requiring assessment of
"objective criteria, chiefly the practices
throughout the nation?" And should a woman
accused of the offense of prostitution for
the first time, be denied a paxamount due
process right, just because New York City
must serve a perceived, but unsubstantiated,
administrative need? Petitioner believes
that only a grant of certiorari by this
Court can settle such important questions.
-40-
CONCLUSION
For the reasons expressed herein,
petitioner respectfully requests that a writ
of certiorari be granted in this case.
Respectfully submitted,
RICHARD EMERY
New York Civil Liberties
Union
84 Fifth Avenue
New York, NY 10011
212-924-7800
Counsel for Petitioner
Dated: New York, New York
September 2, 1983
BURT NEUBORNE
CHARLES S. SIMS
American Civil Liberties
Union Foundation
132 West 43 Street
New York, NY 10036
(212) 944-9800
Of Counsel
APPENDIX
PPS"
APPENDIX
Table of Contents
Pages
Opinion of New York Court of
8 Or ee rear hsm rr men, Fn
Summary Affirmance of the Appellate
Division, First Department........26a-27a
Opinion of the Special Term, Part ce
New York County Supreme Court.....28a-43a
Opinion of Petitioner in People v.
Link, New York County Criminal
UU bec eb cece we ee te ebe ened cts sca tte=tbO
STATE OF NEW YORK
COURT OF APPEALS
1 No. 206
In the Matter of Robert M.
Morgenthau, Dixtrict Attorney
of New York County, &c.,
OPINION
Respondent,
co
Vv.
William M. Erlbaum, a Judge
of the Criminal Court of the
City of New York, New York
County, et al.,
Appellants.
COOKE, Ch. J.:
On rare occasions, a criminal court will
make an interlocutory ruling in favor of a
defendant that will both affect fundamental
rights and have implications reaching far
beyond the immediate case in which the order
is made. In such situations and when the
controversy is purely a legal one, an indepen-
dent action for declaratory relief against
the ruling judge may be allowed where the
circumstances warrant.
Respondent William M. Erlbaum is a Judge
of the Criminal Court of the City of New York,
-2a0
New York County. In 1981, two women accused
of prostitution, which carries a three-month
maximum sentence, appeared before Judge
Erlbaum and moved for trial by jury. The
defendants argued that CPL 340.40 (subd 2),
directing that crimes punishable by not more
than six months' incarceration shall be heard
before a judge, was unconstitutional because
it deprived them of their Sixth Amendment
right to jury trial and denied them equal
protection of the law. The court granted
their motion, reasoning that, notwithstanding
its relatively minor sentence, prostitution
is a "serious" crime with a concomitant right
to trial by jury (see People v. Link, 107
Misc 2d 973). The defendants' equal-protec-
tion argument was not reached (see id. at p.
980).
Petitioner, the District Attorney of New
York County, commenced this proceeding to
prevent respondent's order from taking effect.
Initially, the matter was instituted under
-3a-
article 78 of the CPLR to obtain a writ of
prohibition. Petitioner moved to convert the
proceeding into an action for declaratory
judgment after this court stated that pro-
hibition is not available to attack a
criminal court's ruling that a statute deny-
ing a trial by jury is unconstitutional (see
Matter of Gold v. Gartenstein, 54 NY2d 627).
Special Term granted the motion to convert
and declared that CPL 340.40 (subd. 2) is
constitutional. The Appellate Division, First
Department, affirmed, but without opinion.
Two issues are presented on this appeal.
The first is the procedural propriety of an
action seeking declaratory relief that, in
effect, collaterally attacks a criminal
court's ruling. The other matter, assuming
that the action is proper, is whether CPL
340.40 (subd. 2) violates the Sixth
-4a-
Amendment. >
In determining whether an action for
declaratory judgment lies in the present
circumstances, it is helpful to distinguish the
action from the extraordinary remedy of pro-
hibition, and to examine the policies under-
lying the decisions limiting the issuance of
writs of prohibition.
A writ of prohibition may be obtained only
when a clear legal right of a petitioner is
threatened by a body or officer acting in a
judicial or quasi-judicial capacity "'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
Dondi v. Jones, supra). The decision to issue
the writ is left to the court's sound discre-
tion, which is to be exercised after
lithe parties do not present the equal-protection issue
and, therefore, this court does not express any
opinion on its merits.
consideration of various factors (see id.; La
Rocca v. Lane, supra). In light of the reluctance
to interfere with the normal, orderly adminis-
tration of justice, an important factor is the
adequacy of other legal remedies to correct
the asserted error (see Matter of Dondi v.
Jones, supra; La Rocca v. Lane, supra); if
there is an adequate "ordinary" remedy, then
there is no need to invoke an extraordinary
remedy.
With reference to declaratory relief, it
should first be noted that it is not an extra-
ordinary remedy (see 1 Anderson, Actions for
Declaratory Judgments [2d ed], §197, p. 408,
Borchard, Declaratory Judgments [2d ed], pp
360-361; cf. Borchard, Declaratory Judgments,
1939, 9 Brooklyn L Rev l, 4, 14; Breese;
Atrocities of Declaratory Judgments Law,
41 Minn L Rev 575, 579, 595; compare CPLR
3001 with CPLR 7801). Instead, a declaratory
judgment "is a remedy sui generis and escapes
beth the substantive objections and procedural
limitations of special writs and extraordinary
remedies" (Borchard, Declaratory Judgments,
1939, 9 Brooklyn L Rev at p. 14, supra).
Unlike prohibition, its use is not limited
to reviewing public acts of a judicial nature.
Rather, it has broad application, being
invoked to declarerights derived from both
private and public law (see id. at p. 9 and
fnn 21-29), and from both civil (see, e.g.,
Quaker Oats Co. v. City of New York 295 NY 527)
and criminal statutes (see e.g., Fenster v.
Leary, 20 N¥2d 309). Critically, declaratory
judgment does not entail coercive relief, but
Only provides a declaration of rights between
parties that, it is hoped, will forestall later
litigation (see New York Public Interest Group
v. Carey, 42 NY¥2d 527, 530-531; Borchard,
Declaratory Judgments, 1939, 9 Brooklyn L Rev
at p. 4, Supra; Note, Developments In the Law--
Declaratory Judgments--1941-1949, 61 Harv L
Rev 787, 787-790; Note, The Effect of
=Jae
Availability of Coercive Relief Upon the
Declaratory Judgment, 8 Brooklyn L Rev 321),
In other words, the declaration in the
judgment itself cannot be executed upon so
as to compel a party to perform an act or
to surrender property.
As with prohibition, Granting declaratory
judgment is left to the court's discretion
(CPLR 3001). In keeping with the remedy's
non-extraordinary nature, however, the court
has a broader power to grant declaratory judg-
ment than it does with prohibition. It may
decline to hear the matter if there are other
adequate remedies available, and it must
dismiss the action if there is already pending
between the parties another action in which all
the issues can be determined (see Woollard v.
Schaffer Stores Co., 272 NY 304, 311). The
mere existence of other adequate remedies,
however, does not require dismissal: “We have
never gone so far as to hold that, when there
-Ba-
exists a genuine controversy requiring a
judicial determination, the Supreme Court is
bound, solely for the reason that another
remedy is available, to refuse to exercise
the power conferred by [the predecessor
statutes to CPLR 3001)" (id, at pp. 311-312).7
——
The effect of other adequate remedies on the
availability of declaratory relief has undergone
various convolucions. Careful reading of those
cases that have mentioned the availability of other
remedies reveals that the actual concern was the
standard for reviewing the exercise of discretion
in dismissing an action [see, e.g., Gaynor v.
Rockefeller, 15 NY2d 120, 132; ceekvend Light
and Power Co. v. City of New York, 289 NY 45,
50-51). it is worth noting at this juncture
that, in Gaynor and Rockland Light, descriptions
of deciaratory judgment as an "extraordinary
remedy" are misnomers.
-9a-
In summary, declaratory relief is avail-
able in a wider range of circumstances than is
prohibition. The jurisdictional impediments
to obtaining declaratory judgment are virtually
coextensive with those to any normal lawsuit,
while a writ of prohibition, by definition,
may be granted only in restricted situations.
Insofar as strictly jurisdictional factors are
concerned, then, there is nothing to bar a
district attorney from seeking an interpreta-
tion of a penal statute.
Policy considerations, however, may
militate against entertaining an action for
declaratory judgment that is instituted to
challenge a criminal court's ruling. On this
basis, both declaratory relief and prohibition
have been limited as a means for attacking
penal statutes or court rulings. On reviewing
the reasons underlying those decisions, it is
concluded that the action here is proper.
In the past, prohibition was deemed a
-10a-
proper vehicle for challenging an inter-
locutory order of a criminal court. In
People ex rel. Lemon v. Supreme Court
(245 NY 24), the court approved the issuance
of a writ to prohibit a trial court from
enforcing an order requiring the prosecutor
to divulge information to a criminal defend-
ant. Chief Judge Cardozo, writing for the
court, noted that prohibition was appropriate
because the order could not be appealed, that
there was no other remedy available, and that
"(t]he course of the trial might be changed
with the possible result that justice would
miscarry, for a penalty of disobedience was
to be the exclusion of the evidence" (id. at
35). This position was tacitly reaffirmed in
Matter of Hogan v. Rosenberg (24 NY2d 207,
revd on other gnds sub nom Baldwin v. New
York, 399 US 66). Neither the parties nor the
court there questioned the propriety of seeking
-lla-
a writ to prohibit a court from granting a
jury trial in direct contravention to a
statute.
This position, of course, has been
abandoned (see Matter of Gold v. Gartenstein,
54 NY 2d 627, supra). A court cannot be said
to be acting without power merely because it
issues an arguably erroneous ruling in a case
that is otherwise properly before it (see
Matter of State of New York v. King, 36 NY2d 59,
supra). Of primary concern in King was the
potential for "protracted and multifarious
appeals and collateral proceedings” that would
thereby prevent the speedy disposition of
criminal cases (id. at 63). Prohibition,
therefore, may be used for collateral review
of an error of law "only where the very
jurisdiction and power of the court are in
issue" (Matter of Steingut v. Gold, 42 NY2d
311, 315).
Declaratory relief, on the other hand,
-l2a-
generally seeks a determination of rights
before a "wrong" occurs, rather than collateral
review of a court's ruling. In that context,
it has been used to test penal statutes.
Two tacks have been taken in seeking declara-
tory relief with regard to criminal laws.
First, some have sought a determination
whether particular conduct violates some penal
law. The other has been to test the constitu-
tional validity of a statute. This court
generally has held that the latter is proper;
the former is more circumscribed (Matter of
Storer, 52 NY¥2d 363, 382).
The lead case is Reed v. Littleton (275
NY 150), in which the owner of a greyhound
racing track attempted to obtain a judgment
declaring that a complicated "option" plan
maintained by him was not a gambling scheme
prohibited by the Penal Law. He instituted
the action after being acquitted once of
illegal gambling, but after the prosecutor had
-l3a-
given notice of his intent to file further
charges. This court held that declaratory
relief was not available because the validity
of the statute was not at issue and there was
no assurance that the circumstances or the
prosecutor's proof would not vary in the
future (see id. at pp. 153-154). The court
was loath to impede or interfere with the
executive branch's administration of the
criminal law, as would occur if the courts
decided in civil proceedings whether certain
behavior was criminal, but noted that this
interference would not occur in declaring the
constitutional validity of a statute (see id.
at p. 156). Finally, the court commented that
allowing actions for declaratory judgment in
such circumstances would only delay criminal
justice, not expedite it (see id. at p. 157).
Although a declaratory judgment often
revolves around a particular set of facts,
"[t]he remedy is available in cases ‘where a
-l4a-
constitutional question is involved or the
legality or meaning of a statute is in question
and no question of fact is involved' (Dun &
Bradstreet, Inc. v. City of New York, [276
NY 198,-206]; Bank of Yorktown v. Boland, 280
NY 673.) The remedy, however, isnot available
to restrain the enforcement of a criminal
prosecution where the facts are in dispute or
open to different interpretations" (New York
Operators Foreign Trade Zone v. State Liquor
Authority, 285 NY 272, 277). In New York
Operators, the plaintiff imported liquor into
a trade zone, where it diluted the spirits,
repackaged them, and then shipped them to
other parts of the United States or to foreign
countries. The plaintiff had not obtained a
distiller's license and potentially faced
criminal charges as a result. This court
approved the use of declaratory relief to
determine whether a license was required as
"[t]he nature and purpose of the acts here
-l5a-
sought to be tested are not disputed" (id.
at 278).
One example of an appropriate use of a
declaratory judgment action to challenge a
Criminal statute further demonstrates the
distinction between that remedy and prohibition.
In Fenster v. Leary (20 NY2d 309), the plain-
tiff had been thrice arrested and acquitted
for vagrancy. After the third arrest, he
sought a writ of prohibition on the ground
that the penal statute was unconstitutional.
The lower courts denied prohibition, which
was affirmed on the sole ground that the
remedy was discretionary (see Matter of Fen-
ster v. Criminal Ct. of City of N.Y., 17 NY2d
641). Having been acquitted for the third
time, Fenster sought a declaration that the
vagrancy statute was unconstitutional on its
face. This court held the procedure to be
proper under the circumstances as the plaintiff
was challenging the statute's validity, and
-l6a-
not its application to disputed facts (see
Fenster v. Leary, supra, at p. 312).
The task, then, is to determine whether
a declaratory judgment may be sought to review
an interlocutory criminal court ruling without
running afoul of the policies underlying the
limitations on obtaining a writ of prohibition
in the same circumstances. The primary con-
cerns are to avoid litigating factual issues
in proceedings collateral to the criminal trial
while also shunning collateral appeals that
will delay the criminal trial.
With this in mind, it can be stated that
a declaratory judgment attacking a criminal
court's interlocutory ruling may be granted
when the controversy is over the validity of
a statute, the determination of which does not
require resolving any factual disputes, and
there is no immediate attempt to prevent the
criminal court from proceeding on the course
which it has charted by its ruling.
-l7a-
Furthermore, the criminal court's ruling must
have an obvious effect extending far beyond
the matter pending before it so that it is
likely that the issue will arise again with
the same result in other cases. Put another
way, the situation must be one where it can
be assumed that the question will recur in
other prosecutions and the criminal court will
decide it in the same way. Inasmuch as a
defendant always has available a right to
appeal, only an application for declaratory
relief by the People should be entertained
(see Kelly's Rental v. City of New York, 44
NY2d 700). The recurring nature of the issue,
therefore, should pose a risk of significantly
obstructing the task of administering criminal
justice by imposing an undue burden on pro-
secutors and the courts. Although this court
declines today to expressly limit when such an
action may be brought, it is noted that this
concern over obstructing the speedy resolution
-18a-
of cases suggests that it is most appropriate
when the challenge is to a ruling on how a
trial is to be conducted. This "procedural"
type of question is also the sort that is
likely to recur and to be decided in the same
manner regardless of the facts underlying the
criminal charges. On the other hand, mere
evidentiary rulings would not be proper sub-
jects. Finally, the appropriate parties do
not include the individual defendant in the
case where the challenged ruling was made;
as to him or her, there is another pending
proceeding and the controversy has been
decided (cf. Woollard v. Schaffer Stores Ca: s
272 NY 304, 311, supra). Asa corollary, the
action for declaratory judgment cannot
seek any injunction against the individual
defendant or the criminal court. °
3
This court states no view on the propriety of the
District Attorney's returning to the criminal court
and seeking reargument on the basis of the declaratory
judgment.
~19a-
Applying these factors to the instant
proceeding, it is apparent that declaratory
relief is proper. Judge Erlbaum ruled that
CPL 340.40 (subd 2) was unconstitutional as
applied to prostitution defendants in New
York City. The nature of the ruling clearly
makes it one that will be repeated unchanged
in future prosecutions. Its potential impact
on the criminal justice system is manifest
from Judge Erlbaum's own decision. In 1979,
a total of only 15 out of 14,247 prostitution
cases went to trial in the Manhattan Criminal
Court (see People v. Link, 107 Misc. 2d
973, 980, n. 55, Supra). It can be expected
that, if jury trials were available, far more
prostitution defendants would demand trials,
which would overwhelm the courts and prosecutors
by consuming large amounts of time for selecting
juries and would cause unmanageable delays.
In approving the use of declaratory
judgment in the present situation, it is
-20a-
incumbent upon this court to caution that this
doctrine is to be used carefully and wisely.
The extent to which this relief may be invoked
remains to be developed.
Having concluded that declaratory relief
was a proper remedy under the circumstances
here, the merits of the decision below must
be addressed. As noted, Judge Erlbaum concluded
that prostitution is a "serious" crime and
thereby comes within the scope of the Sixth
Amendment's guarantee of a trial by jury.
In so holding, he acknowledged the relatively
minimal sentence, but reasoned that the length
of incarceration was only one of several
factors that may be considered.
Respondents devote an extensive portion of
their argument to tracing the history of pros-
titution laws; the legal, moral, and psychologi-
cal implications of prostitution; and the
importance private citizens and public officials
-2la-
place on eradicating prostitution. The effect
of respondents' argument, however, would be
to allow each judge to make a subjective
decision on the seriousness of prostitution
as an offense requiring a jury trial.
The analysis adopted by respondents
Stumbles at its threshold. Although earlier
cases may have considered various factors of
a crime (see, e.g., District of Columbua v.
Colts, 282 U.S. 63; Schick v. United States,
195 U.S. 65; Natal v. Louisiana, 139 U.S.
621; Callan v. Wilson, 127 U.S. 540), recent
Supreme Court decisions have emphasized the
length of sentence to the exclusion of
virtually everything else. The penalty is
deemed of major relevance, a gauge of the
locality's social and ethical judgments on the
heinousness of the offense (see Duncan v.
Louisiana, 391 U.S. 145, 159-160). “In ordinary
criminal prosecutions, the severity of the
penalty authorized, not the penalty actually
-22a-
imposed, is the relevant criterion. In such
cases, the legislature has included within the
definition of the crime itself a judgment
about the seriousness of the offense" (Frank
v. United States, 395 U.S. 147, 149). In
Duncan, it was suggested that all offenses
permitting imprisonment for more than six
months would be serious crimes requiring jury
trial. This objective criterion (see Frank v.
United States, supra, at p. 148) has been
elevated into a rule: "(OJur 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" (Codispoti v. Pennsylvania, 418 U.S.
506, 512).
Under this standard, it must be concluded
that, as applied to prostitution charges,
CPL 340.40 (subd 2) does not violate the
-23a-
Sixth Amendment. Prostitution is a Class B
misdemeanor (Penal Law, §230.00), which is
punishable by a maximum imprisonment of
three months. Consequently, prostitution is
a "petty" offense within the meaning of the
Sixth Amendment and, hence, there is no right
to a jury trial.
It is worth commenting on the reasons
why a subjective standard is not employed.
The overriding problem would be the lack of
predictability and consistency in determining
when a jury trial would be granted.
Evaluation of an offense's "seriousness" could
vary from county to county, town to town,
or even court to court. As a result, persons
charged with identical offenses would find that
their right to a jury depended only on the
judge before whom they happened to appear,
not on the offense charged.
A second concern is that, in» establishing
sentences, the Legislature must be pres.med to
-24a-
have weighed public opinion and history, and
to have been aware of the civil implications
of conviction. Indeed, this presumption
implicitly underlies the Supreme Court's
emphasis on sentence length as the indicator
of a crime's seriousness. To allow a judge
to weigh these same criteria and reach a
difterent conclusion as to a crime's
seriousness would be to permit an improper
usurpation of the legislative function.
As discussed, it is an abuse of discretion
for a court to entertain an action for declara-
tory judgment when there is pending between
the parties an action that will fully dispose
of the controversy. This error is compounded
when the controversy has already been decided.
Thus, it was improper for Supreme Court to
have heard the action as against respondents
Link and Meltsner, the defendants in the
criminal action.
-25a-
Accordingly, the order of the Appellate
Division should be modified by striking the
declaration that respondents Link and
Meltsner are not entitled to a jury trial on
the charges of prostitution pending against
them in New York City Criminal Court actions
bearing docket numbers N968606 and N968607
and by dismissing the petition as to
respondents Link and Meltsner, and, as so
modified, affirmed, without costs.
* * * * *
Order modified in accordance with the
opinion herein and, as so modified,
affirmed without costs. Opinion by Chief
Judge Cooke. Judges Jasen, Jones, Wachtler,
Meyer and Simons concur.
Decided June 7, 1983.
-26a-
At a term of the Appellate
Division of the Supreme
Court held in and for the
First Judicial Department in
the County of New York, on
September 16, 1982
Present--Hon. Francis T.
Murphy Presiding Justice
Joseph P. Sullivan
John Carro
Vincent A. Lupiano
Samuel J. Silverman, Justices
In the Matter of the Application
of Robert M. MORGENTHAU, District x
Attorney of New York County, on
behalf of the People of the State x
of New York,
Petitioner-Respondent,
For a judgment pursuant to
Article 78 of the Civil Practice x 14319
Law and Rules,
-Vve
William M. ERLBAUM, a Judge of the
Criminal Court of the City of New x
York, New York County; the Judges
of the Criminal Court of the City ,
of New York, New York County;
and Carol Link and Debra Meltsner,
x
defendants in the Criminal Court
of the City of New York, New York y,
County, New York County Docket
Nos. N968606 and N968607, x
Respondents- x
Appellants.
-27a-
An appeal having been taken to this Court
by the above-named appellants from a judgment
of the Supreme Court, New York County
(Pecora, J.), entered on January 26, 1982,
which, inter alia, granted petitioner-
respondent's motion to convert his Article
78 proceeding into an action for declaratory
judgment, and declared that Section 340.40,
subd. 2 of CPL is constitutional,
And said appeal having been argued by
Richard D. Emery of counsel for appellants,
and by Robert M. Pitler of counsel for
respondent; and due deliberation having
been had thereon,
It is unanimously ordered that the
judgment so appealed from be and the same
hereby is affirmed, without costs and
without disbursements.
ENTER:
JOSEPH J. LUCCHI
-28a-
In the Matter of the Application of
Robert M. MORGENTHAU, District Attorney
of New York County, on behalf of the
People of the State of New York,
Petitioner,
For a judgment pursuant to Article
78 of the Civil Practice Law and
Rules,
-V-
William M. ERLBAUM, a Judge of the
Criminal Court of the City of New
York, New York County; the Judges
of the Criminal Court of the City
of New York, New York County: and
Carol Link and Debra Meltsner,
defendants in the Criminal Court
of the City of New York, New
York County, New York County
Docket Nos. N968606 and N968607,
Respondents.
Supreme Court, Special Term
New York County, Part l.
Nov. 10, 1981
County district attorney moved for a
judgment, pursuant to Article 78, to
prohibit enforcement of an order of the
criminal court declaring Criminal Procedure
-29a-
Law unconstitutional in denying a jury
trial to a person charged with prostitution.
The Supreme Court, New York County, Special
Term, Pecora, J., held that: (1) order by
criminal court judge was collaterally
appealable by the people, and (2) since
prostitution is punishable by only three-
month imprisonment, it is not a "serious"
offense for which jury trials are mandated
by the Sixth Amendment to the United States
Constitution; therefore, Criminal Procedure
Law is not unconstitutional.
Order accordingly.
1. Prohibition 10 (3)
As a general rule, mere errors of law by
a criminal court judge are not appealable
collaterally; rather, it is only in cases
where the judge has exceeded his authorized
power that the Supreme Court may review an
interlocutory order of the criminal court;
however, Supreme Court may grant relief in
-30a-
the nature of prohibition to restrain an
inferior court from exceeding its authorized
powers in a proceeding over which it has
jurisdiction.
2. Prohibition 1
In deciding whether or not an order
should be collaterally appealable the courts
should consider several important factors,
namely, the gravity of the harm caused hy
the excess of power, the availability or
unavailability of an adequate remedy on
appeal, and the effectiveness of prohibition
as a remedy where no other remedy exists.
3. Prohibition 5(4)
When a criminal court judge holds a
statute to be unconstitutional, thereby
prejudicing the people in creating delay in
a criminal justice suit, the people should
be able to collaterally appeal that judge's
decision in the Supreme Court.
-3la-
4, Jury 22 (2)
Since prostitution is punishable by
only three-month imprisonment, it is not a
"serious" offense for which jury trials are
mandated by the Sixth Amendment to the United
States Constitution; therefore, Criminal
Procedure Law which denies a jury trial to
persons charged with the crime of prostitution
in the city of New York is not unconstitutional.
McKinney's CPL §340.40, subd. 2; U.S.C.A.
Const. Amend. 6.
Robert M. Morgenthau, Dist. Atty. of
New York County (Amy Jane Rettew, New York
City, of counsel) for petitioner.
Richard Emery and Robert Abrams, Atty.
Gen., New York City (Susan L. Yarbrough, New
York City, of counsel) for respondent Erlbaum.
Kenneth Fields, New York City, for
respondents Link and Meltsner.
PECORA, Judge:
Motions under calendar numbers 100, 101
-32a-
and 102 are consolidated for disposition.
Petitioner Robert J. Morgenthau, District
Attorney of New York County, moves for a
judgment, pursuant to Article 78 of the CPLR,
to prohibit enforcement by Judge William M.
Erlbaum, or any other judge of the Criminal
Court of New York County, of an order of that
court dated February 23, 1981. Respondent
Erlbaum moves to dismiss pursuant to CPLR
§ 7804(f).
The factual background is as follows: on
February 23, 1981, Judge Erlbaum rendered a
decision in People v. Link and Meltsner, 436
N.Y.S.2d 581, wherein he declared Criminal
Procedure Law §340.40(2) unconstitutional in
that it denied a jury trial to persons charged
with the crime of prostitution in the City of
New York. In essence, Judge Erlbaum's order
rested on the premise that prostitution, although
punishable by only three-months imprisonment,
is a "serious" offense for which jury trials are
mandated by the Sixth Amendment to the United
-33a-
States Constitution. Petitioner's initial
motion was in the nature of a writ of prohibi-
tion to prevent implementation of the subject
decision of Judge Erlbaum and to restrain
other judges from acting in a similar manner
in regard to prostitution cases. Petitioner
thereafter moved for an order converting this
proceeding to an action for declaratory judgment.
This is the type of case which, in this
court's opinion is ripe for declaratory judgment.
The only issue is one of law. The parties
herein al} have a stake in its outcome suffi-
cieptto ensure adequate adversary presentation
of all the pertinent questions of law. A
judgment in this case would resolve the consti-
tutionality of CPL §340.40(2) for all prostitu-
tion cases, whereas a dismissal would leave the
criminal courts in a state of confusion and
disuniformity. We are bound by the decision in
Gold v. Gartenstein, 54 N.Y.2d 627, 442 N.Y.
S.2d 504, 425 N.E.2d 892, (1981) holding that
-34a-
prohibition is not an appropriate remedy in
thie type of case, but this court is not
foreclosed from exercising its jurisdiction
under CPLR Article 30.
[?l As a general rule, mere errors of law
by a Ciiminal Court Judge are not appealable
collaterally. It is only in cases where the
judge has exceeded his authorized powers that
this court may review an interlocutory order
of the Criminal Court. Matter of Lee v.
County Court of Erie County, 27 N.Y.2d 432,
318 N.Y.S.2d 705, 267 N.E.2d 452 (1971);
Proskin v. County Court of Albany County,
30 N.Y.2d 15, 330 N.Y¥.S.2d 44, 280 N.E.2d
875 (1972); Matter of State v. King, 36
N.Y.2d 59, 364 N.Y¥.S.2d 879, 324 N.E.2d
351 (1975).
The justification for this rule was best
explained in King, supra, at p. 63, 364 N.Y.
S.2d 879, 324 N.E.2d 351:
"Litigation may be compounded unduly
by protracted and multifarious appeals
and collateral proceedings frustrating
—————————— ee
-35a-
the speedy determination of dis-
putes.--Were allowance of this
kind of proceeding to become a
precedent, one would have to
anticipate innumerable proceed-
ings in all sorts of criminal
matters to review allegedly
prejudicial errors of law for
which there would be no eventual
appellate review or only appellate
review after final judgment, and
then only of conviction."
Nevertheless, the Court of Appeals has
permitted the Supreme Court to grant relief in
the nature of prohibition "to restrain an
inferior court from exceeding its authorized
powers in a proceeding over which it has
jurisdiction." Lee, supra, 27 N.Y.2d at
p. 437, 318 N.Y¥.S.2d 705, 267 N.E.2d 452.
Thus, in Proskin, supra, the Court held
that an order granting a defendant unlimited
inspection of grand jury minutes to help him
prepare his defense was an excess of authority
for which prohibition was a proper remedy.
See also, Jaffe v. Scheinman, 47 N.Y.2d 188,
417 N.Y¥.S.2d 241, 390 N.E.2d 1165 (1979).
{2] Im La Rocca v. Lane, 37 N.Y¥.2d 575,
-36a-
376 N.Y.S.2d 93, 338 N.E.2d 606 (1979) the
Court held that a Criminal Court Judge's order
prohibiting an attorney from wearing his
clerical garb in court was collaterally
appealable under Article 78 (the court
ultimately resolved the merits against the
attorney). It is clear that "there is no
sharp line between a court acting in error
under substantive or procedural law and a
court acting in excess of its powers." La
Rocca, supra, at p. 580, 376 N.Y.S.2d 93, 33
N.E.2d 606 "Accordingly, in deciding whether
or not an order should be collaterally appeal-
able, the courts should consider several
important factors, namely, "the gravity of the
harm caused by the excess of power, the
availability or unavailability of an adequate
remedy on appeal, and the effectiveness of
prohibition as a remedy where no other remedy
exists." Matter of Dondi v. Jones, 40 N.Y.2d
8 at p. 13, 386 N.Y¥.S.2d 4, 351 N.E.2d 650; |
-37a-
La Rocca, supra, at p. 579-80, 376 N.Y.S.2d
93, 33 N.E.2d 606.
In distinguishing Proskin, the Court in
King stated: "Not necessary to the result in
Proskin, but relevant to the broad policy
determining the interplay of actions and
special proceedings arising from them, the
review by prohibition of the order of
inspection in that case did not delay the
criminal action, but removed a major impetus
to delay in the action and the prosecution
of the other 15 indictments." King at p. 64,
364 N.Y.S. 2d 879, 324 N.E.2d 351.
In the case at bar, denying the right to
a collateral appeal will only serve to create
more delay in the criminal justice system by
permitting Judge Erlbaum, and any other
judge, to grant jury trials for every prosti-
tution case before them. In addition, if
review is not available in this case, there
would be nothing to stop any judge from holding
-38a-
that any petty crime is "serious" and ordering
a jury trial. The resulting confusion
resulting from a holding of nonreviewability
far outweighs the burden of a collateral
proceeding.
The petitioner herein has no adequate
remedy at law. If the defendants Link and
Meltsner are acquitted, there can be no
appeal; if they are convicted, the District
Attorney still cannot appeal from the prejudi-
cial order. In short, a dismissal in this
case will delay the speedy implementation
of justice that the rule against collateral
appeals was meant to protect.
Judge Erlbaum's actions may be
characterized as an excess of authority. New
York City Criminal Court Judges are
authorized to grant jury trials only in cases
where more than 6 months imprisonment is
authorized by law. The statutory limitation
on jury trials is not substantially different
-39a-
from the statutory limitation placed upon the
right to inspect grand jury minutes in Proskin.
The judge's action in Proskin, like Judge
Erlbaum's action here, is an error not of
jurisdiction, but in construing the authorized
powers granted to a judge.
It will not do to say that Judge Erlbaum
had the right to decide the constitutionality
of the statute, and, thus, his decision was
"authorized." Could it be said that the judge
in Proskin would have been within his author-
ity to hold CPL §210.30(2) unconstitutional...
and, that, had he done so, the Court of
Appeals would have reached a different
decision? This court thinks not. Could a
judge hold that a District Attorney’s right
to cross-examine witnesses is unconstitutional,
or that his burden of proof is too lenient,
and should such an order be unreviewable
simply to preserve the uninterrupted flow of
justice? Again, we must answer this question
in the negative. To adopt such a position
-40a-
would lead to the intolerable result that any
time a judge holds a statute unconstitutional,
that error would be unreviewable by this
court, regardless of its damage to the criminal
justice system.
[3] This court does not hold that any
interlocutory order of a criminal court judge,
no matter how trivial, should be reviewable,
because that would create an intolerable \
amount of delay in the expedition of justice.
We only hold that when a criminal court judge
holds a statute to be unconstitutional, thereby
prejudicing the People and creating delay in
the criminal justice system, the People should
be able to collaterally appeal that judge's
decision in this court.
As hereinabove stated, this court has
granted petitioner's motion to convert this
proceeding into an action for a declaratory
judgment (CPLR 103[c]). However, this conver-
sion should have no effect upon the outcome of
-4la-
the petitioner's application. The reviewabil-
ity of Judge Erlbaum's order should not
depend upon technical or procedural formalities.
We now proceed to the merits of Judge
Erlbaum's decision.
{4] In Duncan v. Louisiana, 391 U.S.
145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the
Supreme Court held that the states must provide
a jury trial for all defendants charged with
"serious offenses." In Baldwin v. New York,
399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437
(1970), the Court defined a "serious offense"
as one which is punishable by more than 6
months in prison.
The New York State Legislature restructured
its Criminal Justice system to conform with
the Baldwin decision and enacted CPL §340.
40(2). (See, Practice Commentary to CPL
§340.40, McKinney's 1971 Ed: by Richard
G. Denzer).
It is the opinion of this Court that
CPL §340.40(2) is constitutional under the
-42a-
standard set by Baldwin, supra, a standard
which has not been changed in subsequent
Supreme Court decisions. The State has the
right to limit the availability of jury trials
to preserve "the benefits that result from
speedy and inexpensive non-jury adjudications."
Baldwin, supra, at p. 73, 90 S.Ct. at p.1890.
Although a 6 month cut-off point might
seem arbitrary to some, the Supreme Court has
drawn the line at 6 months in order to prevent
the confusion that would result were each
judge permitted to decide which crimes he or
she considered serious. Furthermore, this
court is not persuaded by Judge Erlbaum's
characterization of prostitution as a "serious"
crime. His argument is helied by one of his
own footnotes, in which he states that only 15
prostitution cases out of 14,247 in 1979 went
to trial (see footnote 55 of Judge Erlbaum's
decision). This statistic hardly represents
a "serious" treatment of the crime of
-43a-
prostitution, either by judges or by
prosecutors.
Nor will this court permit itself to
engage in a discussion of society's perception
of prostitution, although Judge Erlbaum's
conclusions on the matter are highly debatable.
This type of discussion would not be particular-
ly relevant. In classifying prostitution
as a Class B misdemeanor, the State has
decided that prostitution is not "serious"
enough to bear the expense of jury trial. This
decision must be respected.
Accordingly, this court declares that CPL
§340.40(2) is constitutional, and that
defendants Link and Meltsner are not entitled
to a jury trial on the charges of prostitution
pending against them in New York City Criminal
Court actions bearing Docket numbers N968606
and N968607.
-44a-
The PEOPLE of the State of New York
Vv.
Carol LINK and Debra Meltsner,
Defendants.
Criminal Court of the City of New York,
New York County, Part AP 9.
Feb. 23, 1981.
Defendants, who were charged with prostitu-
tion, moved for trial by jury. The Criminal
Court, City of New York, County of New York,
William M. Erlbaum, J., held that prostitution,
no matter how lightly punished, is a serious
crime and many not be prosecuted without
the right to trial by jury; thus, to the
extent that section which directs that trial
shall be before a single judge makes jury
trial unavailable to defendants, section
contravenes the Sixth and Fourteenth Amendments
to the Federal Constitution and is null.
Motion granted.
-45a-
l. Jury 22 (1)
Whether a crime is serious or petty for
purposes of determining right to trial by jury
can be determined by considering whether crime
is one of moral turpitude, whether it is malum
in se or malum prohibition, severity of the
authorized penalty, or, if no penalty limit
is fixed, then the penalty actually imposed
and whether the crime was indictable at
common law.
2. Jury 22 (1)
Fixed dividing line of six months incar-
ceration for purposes of determining whether
defendant was entitled to a jury trial was
only intended to be the criterion of whether
or not an offense is serious where it is
not otherwise inherently serious apart from
sentence to which the defendant is exposed.
3. Jury 22 (2)
Prostitution, no matter how lightly
punished, is a serious crime and may not be
-46a-
prosecuted without right to trial by jury.
CPL 340.40, subd. 2; U.S.C.A. Const.
Amends. 6, 14.
4. Constitutional Law 267
Criminal Law 248
Statute providing that in the New York
City Criminal Court the trial of an informa-
tion which charges a misdemeanor for which
the authorized term of imprisonment is not
more than six months must be a single judge
trial contravened the Sixth and Fourteenth
Amendments and was null and void insofar as
it denied jury trial to defendants charged
with offense of prostitution. CPL 340.40,
subd. 2; U.S.C.A. Const. Amends. 6, 14.
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.
-47a-
Opinion and Order
WILLIAM M. ERLBAUM, Judge.
Defendants, Carol Link and Debra Meltsner,
are charged with the crime of prostitution.+
They have moved for trial by jury, claiming
that Criminal Procedure Law Section 340.40,
subdivision 2" (which directs that the trial
shall be before a single judge) is unconstitu-
tional, first, because prostitution is not a
l
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)
-48a-
"petty" but a “serious” offense requiring
trial by jury under the federal Constitution?
second, because that Section denied them
“equal protection" by withholding the right
to trial by jury in class B misdemeanor *
trials in New York City while permitting jury
trials of such cases in the remainder of the
State.
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 : 3 Pee ae
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 1960).
4
A class B misdemeanor crime exposes the convicted
defendant to imprisonment which shall not exceed three
months. N.Y. Penal Law Section 70.15(2) (McKinney 1975).
-49a-
I.
[1] Whether a crime is serious or petty
can be determined by several criteria.” In
Duncan Vv. Louisiana,° the Supreme Court held
that the length of any sentence of imprison-
ment that may be imposed is a major but not
; . : ; 7
exclusive criterion. In Baldwin v. New York,
=
5
These include whether the crime is one of moral
turpitude (Schick v. United States, 195 U.S. 65, 67,
24S. Ct. 826, 49 L.Ed. 99 [1904]); whether it is malum
in se or malum prohibition (District of Columbia v.
Colts, 282 U.S. 63, 73, 51 S.Ct. 52, 53, 75 L.Ed. 177
(1930); Natal v. Louisiana, 139 U.S. 621, 622, 11 S.Ct.
636, 637, 35 L.Ed. 288 11891]); the severity of the
authorized penalty (Baldwin v. New York, 399 U.S. 66,
90 S.Ct. 1886, 26 L.Ed. 2d 43” [1970]) or, if no penalty
limit is fixed, then the penalty actually imposed
(Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20
L.Ed. 2d 522 [1968]), whether the crime was indictable at
common law (Callan v. Wilson, 127 U.S. 540, 555, 8 S.Ct.
1301, 1306, 32 L.Ed. 223 (1888]); and perhaps others.
The categories "serious" and "petty" are “ill-defined,
if not ambulatory...", such that "the definitional task
necessary falls on the courts...". Duncan v. Louisiana
391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed. 491
(1968).
6
391 U.S. 145, 159, 88 S.Ct. 1444, 1452, 20 L.Ed.
2d 491 (1968).
7
399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed. 2d 437 (1970).
-50a-
the Court held that exposure to incarceration
for more than six months conclusively estab-
lishes the crime charged as serious.
Both Duncan and Baldwin certified the
continuing validity of earlier holdings® that
the nature of an offense and a defendant's
exposure to disabilities other than incarcera-
tion may also qualify that offense as serious.
Thereafter, the Supreme Court decided
ee gt ‘ ald
Codispoti v. Pennsylvania, involving a crimin-
al contempt conviction. The opinion contained
language which the District Attorney herein
8
Callan v. Wilson, 127 U.S. 540, 88 S. Ct. 1301,
32 L.Ed. 223 (1888); Natal v. Louisiana, 139 U.S.
621, 11 S.Ct. 636, 35 L.Ed. 288 (1891); Schick v.
United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99
(1904); District of Columbia v. Colts, 282 U.S. 63,
51 S.Ct. 52, 75 L.Ed. 177 (1930); District of
Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660,
81 L.Ed. 843 (1937); Cheff v. Schnackenberg, 384 U.S.
373, 86 S.Ct. 1523, 16 L.Ed. 2d 629 (1966); Dyke v.
Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct.
1472, 20 L.Ed. 2d 538 (1968).
9
418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed. 2d 912 (1974).
-5la-
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 10
months or less are petty crimes."
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.
[2] To the contrary, I hold that Codis-
poti'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. +
10
418 U.S. at 512, 94 S.Ct. at 2691.
11
United States v. Woods, 450 F.Supp. 1335, 1340
(D. Md. 1978); United States v. Sanchez-Meza, 547
F.2d 461, 463-5 (9 Cir. 1976); Brady v. Blair,
427 F. Supp. 5, 9 (S.D. Ohio, E.D. 1976); Connolly,
"The Petty Offense Exception and the Right to a
Jury Trial," 48 Ford L. Rev. 205. 218 (1979). Cases
going both ways are cited in Gold v. Gartenstein,
(N.Y.) 100 Misc.2d 253, 418 N.Y.S.2d 852 (1979).
-52a-
Taylor v. Hayes, announced the same
day as Codispoti, explicitly recogwized that
some crimes are serious "regardless of the
13
penalty involved." In Ludwig v. Massachu-
setts, -* the Court again observed that the
length of a defendant's exposure to jail is
"usually">>
but not exclusively the measure
of the seriousness of the charges. In Scott
Vv. Illinois, *® the Court again noted that even
as to offenses carrying incarceration of six
12
418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974).
13
418 U.S. at 496, 94 S.Ct. at 2702, quoting
Bloom v. Illinois, 391 U.S. 194, 211, 88 S.Ct. 1477,
1487, 20 L.Ed. 2d 522 (1968).
14
427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed. 2d 732 (1976).
15
427 U.S. at 624-5, 96 S.Ct. at 2785.
16
440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383
(1979).
-53a-
months or less, trial by jury is only unneces-
sary "if they otherwise qualify as petty
offenses...".1/
Il
Like the institution of marriage!® itself,
prostitution is older than the common law.??
17
440 U.S. at 371, 99 S.Ct. at 1161, quoting Duncan
v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1452, 20
L.Ed.2d 491 (1968).
18
See Griswold v. Connecticut, 381 U.S. 479, 485-6,
85 S.Ct. 1678, 1682, 14 L.Ed. 2d 510 (1965).
19
Concerning the ancient character of rules aimed at
"the world's oldest profession" (People v. Smith, 44
N.Y.2d 613, 617-8, 407 N.Y.S.2d 462, 378 N.E.2d 1032
[1978]), see People ex rel. Duntz v. Coon, 67 Hun. 523,
51 N.Y.St. Rep. 339, 341, 22 N.Y¥.S. 865 (1893); People
v. Bailey (N.Y.), 165 Misc. 2d 772, 773, note 1, 432
N.Y.S.2d 789 (1980).
Although prostitutional activity of a purely private and
clandestine nature was brought to the attention of the
Church courts in the Thirteenth Century England (and
thus it has been claimed that prostitution was not a
crime at common law, Bailey v. United States, 98 F.2d 306,
308 [C.A.D.C. 1038); Austin v. United States, 299 A.2d
545 [C.A.D.C. 1973]; Marshall v. United States, 302
A.2d 746 [C.A.D.C. 1973]) by the time of the American
common law, such activity was prosecuted in common
law courts. Rasmussen v. United States, 197 U.S. 516,
25 S.Ct. 514, 49 L.Ed. 862 (1905); State v. Waymire,
(fn. cont. on next page)
-54a-
The District Attorney does not dispute that
even if there were no incarceration involved,
a prostitution conviction results in pro-
found consequences for the person convicted.
( fn. cont. from preceding page)
52 Or. 281, 97 P. 46, 48 (1908); Warren v. People
(N.Y.) 3 Parker Cr.R. 544, 547 (1857); Miller v.
Commonwealth, 88 Va. 618, 16 L.R.A. 441, 14 S.E.
161, 162 (1892); Ogden v. City of Madison, 111 Wis.
413, 87 N.W. 568, 570 (1901), Commonswealth v. Wesley,
171 Pa. Super, 506, 91 A.2d 298, 300 (1952); Gaither
vy. United States, 251 A.2d 644, 645 (C.A.D.C. 1969).
Nor is a common law antecedent an indispensable require-
ment before an offense may be deemed serious; the scope
of the sentence alone may require that designation;
e.g. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,
7) Lied. 2d 491 (1968) (simple assault and battery
which was not an indictable offense at common law.
Goldman v. Kautz, 111 Ariz. 431, 531 P.2d 1138 (1975);
United States v. Newberne, 427 F.Supp. 361, 362 [E.D.
Ky. 1977]); e.g. Bloom v. Illinois, 391 U.S. 194, 88
S.Ct. 1477,. 20 L.Ed.2d 522 (1968) (Criminal contempt,
which, likewise, was not an indictable offense at
common law: see Cheff v. Schnackenberg, 384 U.S. 373,
381, note 1, 86 S.Ct. 1523, 1526, n.l, 16 L.Ed.2d 629
(Harlan, J., concurring) (1966); United States v.
Barnett, 376 U.S. 681, 696, 7, 84 S.Ct. 984, 992 93,
I? L.Ed.2d 23 and at pages 750-1, 84 S.Ct. at pages
1018 [where Goldberg, J., dissented] [1964]
See also, District of Columbia v. Clawans, 300 U.S. 617,
627, 630, 57 S.Ct. 660, 663, 664, 81 L.Ed. 843 (1937);
City Court of City of Tucson v. Lee, 16 Ariz. App. 449,
G94 P.2d 54 CIS73¥ United States v. Woods, 450 F.Supp.
1335, 1342-5 (D.Md. 1978).
-55a-
From Biblical’?
21
times and throughout the
world today, to mark a woman a prostitute
is to designate her a pariah. *? Whether she
is described as a "hustler," a "hooker," a
"“bawa” or a “harict,* a "Biffer," a “truill,"*
"pigmeat" or a "whore, "2?
the prostitute
20
People v. Bailey (N.Y¥.), 105 Misc.2d 772, 773,
note 1, 432 N.Y.S.2d 789 (1980).
21
The New York Times, 7-4-80; page 1 reported the
execution by stoning of a woman convicted of
prostitution in Iran.
22
Battles v. Tyson, 77 Neb. 563, 110 N.W. 299,
300 (1906); Connor v. Niemiec (N.Y.), 25 A.D.2d
857, 269 N.¥.S.2d 788 (2nd Dept. 1966); N.Y.
Civil Rights Law Section 77 (McKinney 1976).
23
C. Winick and P.M. Kinsie, The Lively
Commerce, Chicago, Quadrangle Books, 1971, page
41; People v. Bailey (N.Y.), 105 Misc.2d 772,
773, note 1, 432 N.Y¥.S.2d 789 (1980).
-56a-
bears the opprobrium of "the fallen woman." 24
Conviction exposes her to banishment by
deportation*> to a foreign land; to denial of
entry*° into America; to summary divorce?’ at
the inception of her husband; to being declared
an unfit mother and deprived of the custody?
24
Rosenbleet and Parienta, ''The Prostitution of
the Criminal Law,'' 11 Amer. Crim.L.Rev. 373, 391
(1973) citing In Re Carey, 57 Cal. App. 297, 207
P. 271 (1922).
25
8 U.S.C.A. 125 (a)(12); Marlowe v. United States
Immigration and Naturalization Service, 457 F.2d 1314
(9 Cir. 1972); Greene v. Immigration and Naturalization
Service, 313 F.2d 148 (9 Cir. 1963).
26
8 U.S.C.A. 118a(a) (12).
27
S.T. Grand, Inc. v. City of N.Y., 32 N.Y¥.2d 300,
344 N.Y.S.2d 938, 298 N.E.2d 105 (1973).
28
See People v. Vera Anderson, et al., Crim. Ct.
N.Y¥.Co., Part AP 3, Docket Nos. N9630498, ONO02954,
-57a-
and visitation of her children; to expulsion
, 29
from her residence; to exclusion from many
forms of endeavor; °° and, with every expecta-
tion that her word of accusation will carry
31
little weight in court (or, who would
believe her?), to being freely raped. >
Judges have described prostitutes as
29
N.Y. Real Prop. Law Section 231 (McKinney Pocket
Part 1980), N.Y. Mult. Dwelling Law Sections 352, 353,
354 et seq. (McKinney 1974); N.Y. Real Prop. Actions
and Proceedings Law Section 715 (McKinney 1979 &
Pocket Part 1980); N.Y. Public Health Law, Title II,
Art. 23, Sections 2320 2334 (McKinney 1977); Admin.
Code of the City of N.Y., Chap. 16, Title C:
Hauer v. Manigault (N.Y.), 160 Misc. 758, 290
N.Y.S. 778 (1936).
30
E.g. N.Y. Alcoholic Beverage Control Law
Section 102(2)(h) (McKinney Pocket Part 1980)
31
McCarthy v. McCarthy 143 N.Y. 235, 38 N.E.288
(1894); Moller v. Moller, 115 N.Y. 466, 22 N.E. 169
(1889).
32
See People v. Jose Gonzalez, 96 Misc.2d 639,
409 N.Y¥.S.2d 497 (1978).
-58a-
"malodorous and evil characters,"°° perpe-
trators of “evil and wrongdoing, ">* under-
miners of "public morals and decency...befit-
36
ting good people,">> and as "vicious" and
“vile."?!
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,
33
Remedco Corporation v. Bryn Mawr Hotel Corp.,
45 Misc. 2d 586, 257 N.Y¥.S.2d 525, 526 (1965).
34
Id., 257 N.¥.S.2d at 528.
35
Hauer v. Manigault, 180 Misc. 753, 290 N.Y.S.
778, 780 (1936).
36
Id., 290 N.Y.S. at 781.
37
People ex rel. Clark v. Keeper, 176 N.Y.465,
472 (1903) (Grey, J., dissenting).
-59a-
and narcotic possession and sale."° They
associate her with organized crime,?? public
41 the blight
indecency, *° family instability,
of tourist and commercial areas, ““ and the
spread of venereal disease. *?
38
Rosenbleet and Pariente, ''The Prostitution of
the Criminal Law,"' 11 Amer. Crim. L. Rev. 373, 417
(1973); L'Hote v. New Orleans, 177 U.S. 587, 596,
20 S.Ct. 788, 791, 44 L.Ed. 899 (1900).
39
See People v. Luciano, 277 N.Y. 348, 14 N.E.2d
433 (1938); Matter of P. (N.Y.), 92 Misc.2d 62,
79-80, 400 N.Y.S.2d 455 (1977), reversed sub. nom.
In re Dora P., 68 A.D. 2d 719, 418 N.Y.S.2d 597
(lst Dept. 1979).
40
Matter of P., supra, 92 Misc. 2d at 82, 400
N.Y.S.2d 455.
41
See Id. at 80-1, 400 N.Y.S.2d 455; Caminetti v.
United States, 242 U.S. 470, 486-7, 37 S.Ct. 192,
194-95, 61 L.Ed. 442 (1916).
42
People v. Smith, 44 N.Y.2d 613, 618, 407 N.Y.S.2d
462, 378 N.E.2d 1032 (1978); People v. James, 98
Misc.2d 755, 415 N.Y.S.2d 342, 343 (1979).
43 N.Y. Public Health Law Section 2302 (McKinney
1977); People v. Johnson, 252 N.Y. 387, 169 N.E.619
(1930); People ex rel Krohn v. Thomas (N.Y.), 133
Misc. 145, 231 N.Y.S. 271 (1928); People v. Anonymous
(N.Y.), 161 Misc. 379, 383, 292 N.¥.S.262 (1936); C.
Winnick and P.M. Kinsie, The Lively Commerce, Chicago,
Quadrangle Books, 1971, page 25/7.
-60a-
At bottom, however, the quintessential
thrust of the label "prostitute" is to denomin-
ate the creature to whom it is affixed as,
through and through, unprincipled, a lowlife,
one who would sell out any loyalty, desecrate
any covenant, and, literally as well as char-
acterologically as one willing to do just
about anything for the right price. “4 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. >
44
Carpenter v. People, 8 Barb. N.Y. 603, 610-11
(1850)F Caminetti v. United States, 242 U.S. 470,
487, 37 S.Ct. 192, 195, 61 L.Ed. 442 (1916); United
States v. Bitty, 208 U.S. 393, 402, 28
S.Ct. 396, 398, 52 L.Ed. 543 (1908).
45
Battles v. Tyson, 77 Neb. 563, 110 N.W. 299,
300 (1906); defendants' brief, pages 4-7 citing J.
James, The Many Faces of Suicide: Indirect Self-
Destructive Behaviors, New York, Mccraw Hill, I980,
page 341 et seq., and K. Davis, "The Sociology of
Prostitution," 2 Amer. Soc. Rev. 744 (1937).
-6la-
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
The few judicial opinions concerning prostitu-
tional activity and the right to trial by jury, are
inconclusive.
A. Some are pre-Duncan cases that turn upon principles
of State law. Warren v. People (N.Y.), 3
Parker Cr.R. 544 (1857) (Yes); Miller v. Common-
wealth, 88 Va. 618, 15 L.R.A. 441, 14 S.E. 161
(1892) (Yes); People v. Iverson (N.Y.), 46 App.
Div. 301, 61 N.Y¥.S. 220 (2nd Dept. 1899) (No);
People ex rel. Clark v. Keeper, 176 N.Y. 465
(1903) (Yes, by implication); People ex rel. St.
Clair v. Davis (N.Y.), 143 App. Div. 579, 127
N.Y.S.:1072 (2nd Dept. 1911)(No, by implication);
People v. Harding (N.Y.), 115 Misc. 298, 189
N.Y.S. 657 (1921) (No).
B. Other cases relate to local ordinances. Wong v.
City of Astoria, 13 Or. 538, 11 P. 295 (1886)
(No); Ogden v. City of Madison, 111 Wis. 413,
87 N.W. 568, 55 L.R.A. 506 (1901)(No); Common-
wealth v. Wesley, 171 Pa. Super. 566, 91 A.2d
298 (1952) (Yes); Powers v. State (Fla. App.),
370 So.2d 854 (1979) (Yes).
C. One case, although apparently authoritative, is of
old vintage and contains only sparse reference to
the critical issue herein. Rassmussen v. United
States, 197 U.S. 516.
D. Other cases are premised upon two strained assump-
tions, first, that prostitutional activity was
not dealt with by the common law; second, that
crimes without common law antecedents, are
precluded from being deemed "serious," (see
(fn. cont. on next page)
-62a-
III.
Ironically, the governmental authorities
of New York County treat the crime of prostitu-
tion as serious. Desk appearance tickets in
(fn. cont. from preceding page)
E.
note 19, supra). Bailey v. United States, 98
F.2d 306 (C.A.D.C. 1938)(No); Austin v.
United States, 299 A.2d 545 (C.A.D.C. 1973)
(No); Marshall v. United States, 302 A.2d
746 (C.A.D.C. 1973) (No).
One case is based upon what appears to me to be
a false premise, to wit, that "(t)he guidelines
laid down by the Supreme Court in Duncan v.
Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.
2d 491 (1968), recognized that the right to a
jury trial is not so fundamental to be
required as a matter of Due Process, if the
maximum sentence for the crime charged is less
than six months." (The legislature acted upon
the same premise in enacting N.Y.Crim. Proc.
Law Section 340.40(2); see Practice Commentary to
that section [McKinney 1971]), People v. Cindy
Long and Elizabeth Baker, N.Y.L.J. 6-21-79, page
10, col. 6 (Nardelli J.)(No). See notes ll
through 17 and accompanying text, sup/a.
sixth grouping consists of cases where, for the
most part, nobody contended and everybody simply
assumed that prostitution was a "petty" offense,
and where the only disputed issue was the equal
protection issue posed by N.Y.Crim. Proc. Law
Section 340.40(2) (McKinney 1971). People v.
Cindy Long and Elizabeth Baker, supra (No),
People v. June Taylor et ano., Crim.Ct.N.Y.Co.
Part AP 1, Docket Nos. N4758 & N4777, 1980, 4-17-
80 (Rotker, J.)(No), People v. Vera Anderson et
al., Crim.Ct. N.¥.Co.,Part AP 3, Docket Nos.
N963049 & ONO02954, 7-10-80(Soloff,J.) (No).
-63a-
lieu of arrest, used in a wide variety of mis-
demeanor cases including many involving moral
turpitude and violence, are never used in
47 Accused prostitutes are
prostitution cases.
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,
47
N.Y.Crim. Proc. Law Article 150 (McKinney 1971);
People v. Izsak (N.Y.), 99 Misc.2d 543, 552, 416 N.Y.S.
2d 1004 (1979); Cf. People v. Bob Doe, N.Y.L.J.,
4-6-79, page 12, col. 3 (Rettinger, J.).
-64a-
where those steps are never taken. 78
Adjournments in contemplation of dis-
missal*?
are granted upon the application of
the District Attorney to first-offenders ina
wide variety of misdemeanor cases. The Dis-
trict Attorney never makes this application
in prostitution cases. >°
Likewise, the District Attorney freely
consents to the acceptance of guilty pleas to
48
Directive No. D-48(Nov. 16, 1976) from Julian M.
DeLaRosa, then Chief Clerk/Deputy Executive Officer--
Operations, to Albert Feureisen, then Acting Borough
Chief Clerk/New York Court Clerks--N.Y.Co.; Cf. People
v. C.S., Crim. Ct. N.¥.Co., Part AP 9, Docket No,
N961405, 11-28-79, Berkman, J., pages 3-4; N.Y.L.J.
12-10-79, page 13, col. 5.
49
N.Y.Crim.Proc. Law Section 170.55 (McKinney
Supp. Pamphlet 1980).
50
People v. Izsak (N.Y.), 99 Misc.2d 543, 552,
416 N.¥.S.2d 1004(1979); People v. James, 98
Misc. 2d 755, 415 N.Y¥.S.2d 342, 343 (1979); Cf.
People v. Bob Doe, N.Y.L.J., 4-6-79, page 12,
col, 3(Rettinger,J.).
-65a-
reduced charges in countless categories of
crime but never in prostitution cases.>}
Only in prostitution cases does the
District Attorney have a uniform and unremit-
ting policy of opposing all defense motions to
dismiss first-offender cases in the interests
of justice. >? 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
51
People v. James, 98 Misc.2d 755, 415 N.Y.S.2d
342, 343 (1979); People Izsak (N.Y.), 99 Misc.2d 543,
552, 416 N.Y.S.2d 1004 (1979).
52
See N.Y.Crim. Pre. Law Section 170.40 (McKinney
Supp. Pamphlet 1980); see note 50, supra.
-66a-
impact upon the quality of life in New York
County. >?
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 prosti-
tution 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.
[3,4] The Court finds that prostitution
no matter how lightly punished, is a serious
53
The District Attorney is reported to have
observed that (prostitution) "has a serious negative
impact on the quality of life in the City, and the
economic viability of the City." Daily News, 3-28-79,
page 18, as quoted in defendants’ brief, page 9.
-67a-
crime>4 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 Amend-
ments to the Federal Constitution ad is null.
In light of this resolution of the motion,
it is unnecessary to reach and pass upon
defendants' "equal protection"
54
The "objective" factor (District of Columbia v.
Clawans, 300 U.S. 617, 628, 57 S.Ct. 660, 663, 81
L.Ed. 843 [1937]) as reflected in "the existing laws
and practices in the Nation" (Duncan v. Louisiana,
391 U.S. 145, 161, 88 S.Ct. 1444, 1453, 20 L.Ed.
491 [1968] is this: in at least twenty-five states,
trial by jury is granted in prostitution cases. To
arrive at this figure, I applied the six-month test
of Baldwin v. New York, 390 U.S. 66, 90 S.Ct. 1886,
26 L.Ed.2d 437 (1970) to a chart containing the
authorized sentences for prostitution convictions
as reported in 1973 national survey. See Rosenbleet
and Pariente, "The Prostitution of the Criminal
Law," 11 Amer. Crim.L.Rev. 373, 422 6 (1973).
-68a-
claim.”
55
The District Attorney argues that "defendants
have no fundamental right to a jury trial of the
informations charging them with class B misdemeanors
bearing maximum penalties of three months’ imprison-
ment. Therefore, the appropriate standard of review
as to the constitutionality of the classification
created in CPL Section 340.40(2) is the ‘rational
nexus’ test. Application of that test to CPL Section
340.40(2) reveals that it is reasonably related to a
legitimate state interest in limiting the extreme
congestion in the New York City Criminal Courts"
(People's Answering Memorandum of Law, page 6).
The District Attorney does not suggest that the
alleged administrative inconvenience of granting trial
by jury in prostitution cases could possibly justify
denying such mode of trial where the Federal
Constitution--and not merely a statute--confers the
right to have such a trial. Therefore, as I do not
reach the equal protection issue, left open in
Baldwin v. New York, 399 U.S. 66, 71, note 17, 90
S.Ct. 1886, 1889, n.17 (1970) but later decided in
conformity with the District Attorney's argument, in
the lower court cases cited in note 46 F of this opin-
icn, there is no occasion to resolve the claim of
inconvenience. Suffice it that of 14,247 prostitution
cases in Manhattan Criminal Court in 1979 (made up of
3,961 straight prostitution cases [N.Y.Penal Law
Section 230.00 (McKinney 1980) and 10,286 loitering
for prostitution cases [N.Y.Penal Law Section 240.37
(McKinney 198C)], a total of fifteen cases went to
trial (eleven straight prostitution cases plus four
loitering for prostitution cases). See note 57, infra.
Research has failed to disclose any comparable hart —
data for cities such as Buffalo and Rochester where
an accused prostitute may have a jury trial as of
right; however, telephone interviews with officials
(fn. cont. on next page).
-69a- 56
Motion granted. Trial by jury ordered.
Order stayed thirty days to afford the District
Attorney adequate time to pursue his legal op-
tions.
(fn. cont. from preceding page)
in those cities yielded the impression that there had
apparently been no prostitution jury trials in recent
memory.
56
Gold v. Gartenstein (N.Y.), 100 Misc.2d 253, 418 N.Y.S.
2d 852 (1979); People v. Denning (N.Y.), 98 Misc.2d 369,
413 N.Y.S.2d 837 (1979); and Matter of Morgenthau
(Nardelli), N.Y.L.J., 3-21-80, page 13, col. 3 are
distinguishable from this case. They deal with CPL
Section 340.40(7)--not with subdivision 2.
Those opinions are based upon the premise that the very
nature of youthful offender procedure makes the
youthful offender adjudication "petty," e.g., no
criminal record, as such, arises; the accusatory
instrument is sealed; all court records are confidential;
et cetera. See People v. Joseph M. (N.Y.), 84 Misc.
2d 1046, 1047, 377 N.Y.S.2d 440 (1975). Cf. Matter of
Felder (N.Y.), 93 Misc.2d 369, 402 N.Y¥.S.2d 528 (1978).
57
Gratitude is expressed to Deputy Borough Chief Clerk
of the Court, George Bessinger, for his arduous statis-
tical compilation of 1979 prostitution cases referred to
in note 55, supra; to Kathy Friedman, Ellen Goldstein and
Jean Ray of the Law Department of the Court, for their
extensive legal research; to New York Attorney Jonathan R.
Goldberg, for his helpful suggestions pro bono publico;
and to Assistant District Attorney Jane Sachs and defense
counsel Kenneth R. Fields, for their excellent briefing
of the issues.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.