# Petition for Writ Not Available at Time of Filming — Redwood v. New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0090%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ Not Available at Time of Filming - **Published:** January 1, 1971 - **Citation:** 404 U.S. 1003 ## Text 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- RDS as AOE, ih ROE ED eS PR OLID PRAM RAE, RA Oa AOI PRE LAL GCAO ARSE BM AY NADP VE ASE a cg Tad! 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0090%3A2. Public record. Not legal advice.