Petition for Writ Not Available at Time of Filming — Redwood v. New York

Statement of the Case

The petitioner, Junius Redwood, was arrested on May

17, 1968, and, in complaints filed in the New York City

Criminal Court, was charged with assault in the second

degree [N.Y. Penal L. §120.05]; criminal trespass in the

second degree [N.Y. Penal L. $140.10]; and operating a

motor vehicle while in an intoxicated condition [N.Y. Veh.

& Traf. L. §1192(2)]. After several adjournments at de-

fendant’s request and one failure to appear, a hearing on

the felony charges was held in the New York City Crim-

inal Court on November 18, 1968. At this hearing, the

court with the People’s consent reduced the felonious as-

sault charge to assault in the third degree [N.Y. Penal L.

$120.00]. The other misdemeanor charges remained un-

disturbed. Also at this hearing, petitioner made his first

motion for a trial by jury, which the court denied pursuant

to §§40 and 42 of the New York City Criminal Court Act.

On December 4 and 5, 1968, the petitioner was tried

before a three-judge panel of the New York City Criminal

Court, as preseribed in §$40 and 42 cf the New York City

Criminal Court Act. At trial, he made a further oral re-

quest for a trial by jury which the court denied.

At trial, the People proved that on May 17, 1968, at

about 12:15 a.m. the petitioner drove his car at high speed

into a restricted area at the Transit Authority yards at

147th Street and Lenox Avenue, New York City. In en-

tering the yards, the petitioner narrowly missed the gate

keeper, Walter Wilson, who was forced to jump out of the

car’s path to avoid being struck. Once inside the yards,

—

Vv

the petiticaer drove around erratically, eventually smash-

ing into the wall of a brick circuit breaker building. After

screaming obscenities and threatening a Transit Authority

employee with death, the petitioner was eventually arrested

and taken inio custody by N.Y.C. Transit Authority Pa-

trolman Gunnar Huvala. Patrolman Huvala noticed at

this time that the petitioner staggered while he walked,

and had a strong odor of alcohol on his breath.

After his arrest, the petitioner was taken to the police

station in the back seat of a radio squad car which also

contained three police officers. At about 12:30 a.m., as the

car stopped in front of the station house, the petitioner

kicked the driver of the car, Patrolman Michael Delligatti,

in the left side of his face, damaging the patrolman’s left

ear.

At the station house, Patrolman Huvala further ob-

served that the defendant’s speech was slurred, and ad-

ministered further tests to the petitioner; in the balance

test. the petitioner staggered and could not make his turns

properly; on the finger-to-nose test, he could not touch

his finger to his nose; on the coin-scattering test, he had

great difficulty in picking up any coins.

At the conclusion of trial, the petitioner was convicted

of the misdemeanors of assault in the third degree [New

York Penal L. §120.00] and operating a motor vehicle

[Veh. & Traf. L. §1192(2)], one judge dissenting from the

verdict on the latter charge. Judgment was rendered on

March 28, 1969, and Redwood was sentenced to a condi-

tional d’scharge on the assault count, and to pay a fine

of $100 or to serve 10 days’ imprisonment, as well as rev-

4

ocation of his operator’s license on the intoxicated driv-

ing count.

On appeal to the Supreme Court of the State of New

York, Appellate Term, First Judicial Department, the pe-

titioner argued that the evidence did not establish that he

was guilty of the intoxicated driving charge beyond a rea-

sonable deubt. Further, he argued that the complaint

charging intoxicated driving was improperly drawn and

defective, that the court abused its discretion in denying

his request at trial for a continuance in order to obtain

an additional witness, and that he was denied due process

by virtue of the trial court’s denial of his motion for a

trial by jury.

The Supreme Court rejected these contentions and

unanimously affirmed petitioner’s conviction on May 6,

1970.

On May 26, 1970, the petitioner, seeking further review

by the N.Y. Court of Appeals, filed a notice of appeal from

the judgment of the Appellate Term of the Supreme Court

of the State of New York with the clerk of the Supreme

Court, New York County.

However, the New York Code of Criminal Procedure

provides that in order for an appeal to be taken to the

New York Court of Appeals, the party must first make

application for leave to appeal within 30 days by seeking

a certificate granting permission to appeal from a judge

of the Court of Appeals or a justice of the Appellate Divi-

sion of the Supreme Court [N.Y. Code of Cr. Proce. $520].

Assuming that such a certificate is granted, the appellant

5

may then file a notice of appeal within 15 days of the grant-

ing of the certificate. This notice is filed in duplicate with

the clerk of the Supreme Court in the county in which the

judgment being appealed from was rendered. A copy is

then sent to the Clerk of the Court of Appeals in Albany.

In the instant case the petitioner did not seek such a certif-

icate. Accordingly, on April 6, 1971, Judge Scmepr1 of

the New York Court of Appeals dismissed defendant’s no-

tice of appeal as untimely for failure to comply with the

requirements of the statute.

In the instant petition, petitioner apparently seeks cer-

tiorari pursuant to 28 U.S.C. $1257 (3). In his petition

he alleges that he was denied process of law because

the trial court denied his request for a trial by jury pur-

suant to Sections 40 and 42 of the New York City Criminal

Court Act.

ARGUMENT

POINT I

Petitioner’s motion is untimely, as the New York

Court of Appeals properly dismissed his application

for leave to appeal.

Petitioner’s appeal was unanimously affirmed by the

New York Supreme Court, Appellate Term, First Judicial

Department, on May 6, 1970. It is from this judgment

that petitioner appeals. However, the petitioner did not

start the instant proceeding until April 10, 1971 when he

filed with this Court a copy of the order of Judge Scileppi

of the New York Court of Appeals, dated April 6, 1971,

denying his application for leave to appeal to that Court

6

as being untimely. Accordingly, the petitioner has failed

to meet the requirement of Rule 22 (1) of this Court, which

requires the filing of a petition for a writ of certiorari

and certified record within ninety days of the day of judg-

ment.

The petitioner failed to perfect his state remedy by

seeking a certificate granting leave to appeal from a judge

of the Court of Appeals or a Justice of the Appellate Di-

vision of the N.Y. Supreme Court within 30 days of the

entry of judgment, as is required by statute [N.Y. Code

of Cr. Proc. §520]. Instead, he simply filed a notice of

appeal with the clerk of the Supreme Court of New York

County. Properly, this notice is filed within 15 days after

the granting of such a certificate [N.Y. Code of Cr. Proc.

§521]. A duplicate copy is then sent to the clerk of the

Court of Appeals in Albany, New York, and the case is

docketed.

Because of petitioner’s failure to follow this procedure,

the Court of Appeals found itself unable to hear the case,

and Judge Scileppi of that court accordingly dismissed

defendant’s notice of appeal as untimely on April 6, 1971.

That decision was not made on the merits of petitioner’s

case, but purely on the basis of the untimeliness of his

application.

Accordingly, the judgment which petitioner now seeks

to review is that of the Appellate Term of the New York

Supreme Court, rendered May 6,1970. Although this Court

has stated that Rule 22 is not jurisdictional or mandatory

and may be waived in proper cases in the interests of jus-

tice, no such considerations are present here. The peti-

7

tioner was represented by able counsel throughout the pro-

ceedings, and has shown no extenuating circumstances jus-

tifying such action. By contrast, in these cases where a

waiver was granted, there has generally been either a

near-compliance with the Rule’ or an extraordinary reason

why it should be waived. Cf. Smith v. Mississippi, 373 U.S.

238 (1962) (the petition reached this Court one day late,

but was mailed four days earlier); Arnold v. North Caro-

lina, 376 U.S. 773 (1964) (a capital case where the petition

was two weeks late); Banks v. California, 382 U.S. 420

(1966) (the petition was timely delivered by a prisoner

to prison authorities, who mailed it after the necessary

period had expired). Nothing of this nature was involved

in the instant petition. Accordingly, it should be dismissed.

POINT II

The petitioer’s right to a trial by jury, as inter-

preted by this Court’s decision in Duncan v. Louisiana,

391 U.S. 145 (1968), was not infringed, and Baldwin

v. New York, 399 U.S. 66 (1870) should not be applied

retroactively to his case.

The petitioner contends that he was denied his right to

a trial by jury. He alleges that he faced a possible sen-

tence of two years and three months’ imprisonment at

trial, and accordingly, since judgment was rendered against

him on March 28, 1971, after the effective date of this

Court’s decision in Duncan v. Louisiana, 391 U.S. 145

(1968) he contends that the failure of the New York City

Criminal Court to grant him a trial by jury pursuant to

§§40 and 42 of the New York City Criminal Court’s Act

violated his right to due process. He further alleges that

these sections are unconstitutional.

8

In the alternative, petitioner argues that this Court’s

decision in Baldwin v. New York, 399 U.S. 66 (1970), which

holds that a defendant facing a term of imprisonment of

‘more than six months is entitled to a trial by jury, should

be applied retroactively to his case. Baldwin was decided

on June 22, 1970. These contentions are without merit.

First, petitioner is mistaken in his contention that he

faced a possible sentence of two years and tt:ree months’

imprisonment. He was charged with operating a motor

vehicle in an intoxicated condition, a misdemeanor punish-

able by a maximum term of imprisonment of one year

[N.Y. Veh. & Traf. L. §§1192(2), 510(2); N.Y. Penal L.

§$§55.10(7) (¢), 70.5(3)], assault in the third degree, a mis-

demeanor punishable by a maximum term of imprisonment

of one year [N.Y. Penal L. §§70.15(1), 120.00] and ecrim-

inal trespass in the second degree, a misdemeanor punish-

able by a maximum term of imprisonment of three months

[N.Y. Penal L. §$70.15(2), 140.10]. Thus, petitioner evi-

dently arrived at his figure of a possible sentence of two

years and three months by adding the possible sentences

for each of these offenses. However, since all of the of-

fenses were related as parts of a single incident, any sen-

tences imposed by the court would have had to run con-

currently [N.Y. Penal L. $$60.10(2) (a) and (d), 70.25(2)

and (3)]. This rule was made clear by the New York

Court of Appeals, which construed these provisions in

People v. Lopez, 28 N.Y.2d 148 (1971). Accordingly, the

maximum period of incarceration which petitioner faced

at trial was one year. Since this period was considered

by New York Courts to be within the limits set by Duncan,

petitioner’s rights were not violated under this standard.

9

However, the petitioner further argues that he was

denied a jury trial under the standard of this Court’s deci-

sion in Baldwin v. New York, 399 U.S. 66 (1970). Decided

on June 22, 1970, Baldwin held that those facing incarcera-

tion for periods in excess of six months would be entitled

to a trial by jury. However, this case was decided over a

year after petitioner’s trial, and both state and federal au-

thorities have properly refused to give it retroactive effect,

a result tha: this Court has declined to disturb. People v.

Dargan, 27 N.Y. 2d 100 (1970), cert. denied 400 U.S. 920,

reh. den. 400 U.S. 1002 (1971) ;U.S. ex rel. Farmer v. Kosan,

440 F. 2d 1256 (2d Cir. 1971); U.S. ex rel. Butler v.

Thomas, 440 F. 2d 992 (2d Cir. 1971), reversing 319 F.

Supp. 524 (S.D.N.Y. 1970), cert. denied —— U.S. —~—

(10/12/71).

Further, on the merits of petitioner’s claim, Baldwin

should not be given retroactive effect. In De Stefano v.

Woods, 392 U.S. 631 (1968) this Court reiterated the

considerations that affect the judgment whether a case

reversing prior doctrine in the area of the criminal law

should be applied only prospectively or retroactively :

‘*(a) The purpose to be served by the new stand-

ards.

(b) The extent of the reliance by law enforcement

authorities on the old standards.

(c) The effect on the administration of justice of a

retroactive application of the new standards.’’ 392

U.S. 631, 632.

In De Stefano, it was held that these considerations

favored applying Duncan prospectively only. They are

10

equally persuasive on the question of the retroactivity of

Baldwin. Drastie disruption of the administration of jus-

tice would flow from applving the Baldwin ruling to cases

already tried. Hundreds, if not thousands, of defendants

who were tried before June 22, 1970, on Class A mis-

lemeanor charges, without a jury, were sentenced in the

New York City Criminal Court. If Baldwin is retroactive

to cases already tried, these cases must be thrown out. In

addition, thousands of convictions entered since Duncan

could be needlessly overturned, and the cases reopened.

This chaos would not be required by justified concern that

the fact-finding process previously employed in the New

York City Criminal Court, a trial before a court without

jurors, was unreliable. The Supreme Court rejected that

eoncern in De Stefano v. Woods, supra. Finally, it is in-

disputable that New York State courts, prosecutors and

other officials justifiably have relied on a conclusion that

a jury trial was not constitutionally required in mis-

demeanor cases in the New York City Criminal Court.

Bench trials had been the practice, undisturbed by the

courts, from the inception of New York’s statehood, and

the Duncan decision did not vitiate that reliance.

Moreover, this Court in Duncan tendered strong sug-

gestions that a potential one-year sentence did not require

a jury trial. The Court deemed significant the fact that

‘**in 49 out of the 50 states crimes subject to trial with-

out a jury * * * are punishable by no more than one

year in jail.’’ 391 U.S., at 161.

Bloom y. Illinois, 391 U.S. 194 (1968) contains a similar

suggestion that one year’s imprisonment is an acceptable

boundary between serious and petty offenses under the

11

Sixth and Fourteenth Amendments. In Bloom, the Court,

having decided ‘‘to treat criminal contempt like other

crimes insofar as the right to jury trial is concerned”’ [id.

at 210], invalidated a sentence of two years for criminal

contempt which was impssed without a jury trial. Refer-

ring to the diverse and confusing provisions in the various

states as to the scope of punishment for criminal contempt,

the Court concluded, in an opinion by Xr. Justice Wuirte:

‘*Tt is clear, however, that punishment for contempt

is limited to one year or less in over half the States.’’

Id. at 206-207, n. 8.

Since neither Duncan nor Bloom involved a one-year sen-

tence, the Court’s repeated references to the one-year cut-

off was noteworthy in New York.

The reasonableness of continuing the New York practice

after Duncan is confirmed by the request of New York State

in the Duncan case that the present New York system be

preserved. The Attorney General of New York, in his

amicus curiae brief in Duncan, referred the Court to the

New York City Criminal Court Act, and concluded:

‘‘The Court should render a decision which does

not interfere with trial without a jury in the class of

criminal prosecution in which it is permitted in New

York.”’

Moreover, when the Court held that Duncan itself was

not retroactive, it emphasized that |

‘*both Duncan and Bloom left open the question wheth-

er a contempt punished by imprisonment for one year

is, by virtue of that sentence, a sufficiently serious mat-

12

ter to require that a request for jury trial be honored.’’

De Stefano v. Wouds, supra at 633.

From all appearances, the Court carefully avoided invali-

dating the New York statutes, though it easily could have

disposed of the matter and prevented further litigation on

the issue. Undeniably, continued reliance on the velidity

of the New York system was reasonable, even after Duncan.

People v. Donaldson, 25 N.Y.2d 388 (1969), ~iich applied

People v. Fuller, 24 N.Y.2d 292 (1969) retroactively, is dis-

tinguishable. Fuller had held that there was no rational

basis for a distinction, as to the opportunity for a jury trial,

between criminal and civil commitment for narcotic addicts,

and that the denial of a jury trial to crin:inal addicts on the

issue of addiction violated equal protection. In Donaldson

this Court applied Fuller retroactively for reasons totally

absent from the case at bar: ‘‘Fuller declared no new con-

stitutional right, devised no new criminal procedure, and

did not strike down any prior decision giving apparent con-

stitutional sanction to the procedure there found uncon-

stitutional.’’ 25 N.Y.2d at 42. Moreover, ‘‘existing deci-

sional law with respect to the requirement of the equal pro-

tection of the laws clearly indicated the statute’s constitu-

tional deficiency,’’ and the procedure was struck down by

this Court, in a unanimous holding, at the very first oppor-

tunity. Jd. at 43. In the present case, the procedure in

question, far from being clearly illegal, was upheld by this

Court in a reasonable opinion [People v. Baldwin, 24 N.Y.

2d 207 (1969) ], and was later struck down only over sharp

dissent in the Supreme Court. Mr. Justice Wuire’s opin-

ion, speaking for three justices of the five-justice majority,

concedes that the New York procedure was not clearly il-

13

legal. Baldwin v. New York was no more ‘‘foreshadowed’’

by Duncan than Miranda v. Arizona, 384 U.S. 436 (1966),

which is not retroactive, was ‘‘foreshadowed’’ by Malloy

v. ITogan, 378 U.S. 1 (1964) and Escobedo v. Illinois, 378

U.S. 478 (1964).

Thus, although Duncan was a steppingstone in the new

direction, there is ample precedent for holding that the

Baldwin cas’ not any prior ease, is the appropriated land-

mark for determining which cases should be affected by

the new rule. The courts have frequently chosen the date

or a new decision, not previous cases on wh‘ch it was based,

as a starting date for its applicability. For example, when

the Supreme Court ruled in Malloy v. Hogan, supra, that

the Fifth Amendment privilege against self-incrimination

was applicable to the states, it was a foregone conclusion

that state judges and prosecutors would soon be barred

from commenting at trial upon the defendant’s failure to

testify. Yet, when the High Court did hold that such com-

ment was forbidden, in Griffin v. California, 380 U. 8. 609

(1965), that holding was not applied to cases that were al-

ready final, even if such cases were tried after Malloy v.

TTogan. Tehan v, Shott, 382 U. S. 406 (1966). Similarly,

Miranda vy. Arizona was an outgrowth of Malloy v. Hogan

and of rulings applying the Sixth Amendment right to coun-

sel, including Escobedo vy. Illinois. But Miranda was not

applied to cases tried prior to its announcement. Johnson

v. New Jersey, 384 U.S. 719 (1966). Prior constitutional

rulings were also the foundation of United States v. Wade,

388 U.S. 218 (1967), which held that the right to counsel

attached at a line-up. See Gideon v. Wainwright, 372 U.S.

339 (1963); Escobedo vy. Illinois, supra. But here again

the decision was held inapplicable to cases arising previous-

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14.

ly, even though such cases might have arisen after Gideon

and Escobedo. Stovall v. Denno, 388 U. S. 293 (1967) ; see

also Desist v. United States, 394 U. S. 244 (1969).

It is also immaterial that in Baldwin the defendant was

attacking a statute. Nullification of a procedural statute

by a new judicial ruling does not require retroactivity.

People v. Morhouse, 21 N.Y.2d 66, 77 (1967); People v.

Kaiser, 21 N.Y.2d 86 (1967), aff’d 394 U. S. 280 (1969) ;

cf. Fuller v. Alaska, 393 U.S. 80 (1968) ; People v. Tannen-

baum, 23 N.Y.2d 753 (1958).

In sum, Baldwin invalidated the two-century-old New

York State scheme, and the date of this decision should

mark its application. Appellant having been tried prior

to Baldwin, he was not entitled to a jury trial.

Conclusion

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Frank 8. Hocan

District Attorney

New York County

MicHacku R, JuvILer

Lewis R. FrrepMAN

Assistant District Attorneys

Of Counsel

November, 1971