Opinion
February 23, 1981
Kassner Detsky, P.C. (Kenneth R. Fields of counsel), for defendants.
Robert M. Morgenthau, District Attorney (Jane Sachs of counsel), for plaintiff.
Defendants, Carol Link and Debra Meltsner, are charged with the crime of prostitution. They have moved for trial by jury, claiming that CPL 340.40 (subd 2) (which directs that the trial shall be before a single Judge) is unconstitutional, first, because prostitution is not a "petty" but a "serious" offense requiring trial by jury under the Federal Constitution, second, because that section denies 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.
Section 230.00 of the New York Penal Law places the offense in the class B misdemeanor category.
New York CPL 340.40 (subd 2) 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."
The Constitution provides that: "The Trial of all Crimes, except in Cases of Impeachment, shall be by jury". (US Const, art III, § 2, par 3.) The Sixth Amendment provides that: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury". (US Const, 6th Amdt.)
The right to trial by jury, held not to apply to so-called petty or trivial offenses (Callan v Wilson, 127 U.S. 540), was made applicable to the States in Duncan v Louisiana ( 391 U.S. 145).
Defendants herein do not make any claim under the New York Constitution, which leaves the mode of trial entirely up to the Legislature. (NY Const, art VI, § 18, subd a.)
A class B misdemeanor crime exposes the convicted defendant to imprisonment which shall not exceed three months. (Penal Law, § 70.15, subd 2.)
I
Whether a crime is serious or petty can be determined by several criteria. In Duncan v Louisiana, the Supreme Court held that the length of any sentence of imprisonment that may be imposed is a major but not exclusive criterion. In Baldwin v New York, the court held that exposure to incarceration for more than six months conclusively establishes the crime charged as serious.
These include whether the crime is one of moral turpitude (Schick v United States, 195 U.S. 65, 67); whether it is malum in se or malum prohibitum (District of Columbia v Colts, 282 U.S. 63, 73; Natal v Louisiana, 139 U.S. 621, 622; the severity of the authorized penalty (Baldwin v New York, 399 U.S. 66), or if no penalty limit is fixed, then the penalty actually imposed (Bloom v Illinois, 391 U.S. 194); whether the crime was indictable at common law (Callan v Wilson, 127 U.S. 540, 555, supra); and perhaps others.
The categories "serious" and "petty" are "ill-defined, if not ambulatory * * * [such that] the definitional task necessarily falls on the courts". (Duncan v Louisiana, 391 U.S. 145, 160, supra.)
391 U.S. 145, 159, supra.
399 U.S. 66, supra.
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 incarceration may also qualify that offense as serious.
Callan v Wilson, 127 U.S. 540, supra; Natal v Louisiana, 139 U.S. 621, supra; Schick v United States, 195 U.S. 65, supra; District of Columbia v Colts, 282 U.S. 63, supra; District of Columbia v Clawans, 300 U.S. 617; Cheff v Schnackenberg, 384 U.S. 373; Dyke v Taylor Implement Co., 391 U.S. 216.
Thereafter, the Supreme Court decided Codispoti v Pennsylvania, involving a criminal contempt conviction. The opinion contained language which the District Attorney herein relies upon in opposing defendant's motion: "our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes." 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.
418 US, supra, at p 512.
To the contrary, I hold that in Codispoti, the 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. Taylor v Hayes announced the same day as Codispoti, explicitly recognized that some crimes are serious "'regardless of the penalty involved.'" In Ludwig v Massachusetts, the court again observed that the length of the defendant's exposure to jail is "usually" but not exclusively the measure of the seriousness of the charge. In Scott v Illinois, the court again noted that even as to offenses carrying incarceration of six months or less, trial by jury is only unnecessary "'if they otherwise qualify as petty offenses'".
United States v Woods, 450 F. Supp. 1335, 1340; United States v Sanchez-Meza, 547 F.2d 461, 463-465; Brady v Blair, 427 F. Supp. 5, 9; Connolly, The Petty Offense Exception and the Right to a Jury Trial, 48 Fordham L Rev 205, 218; cases going both ways are cited in Matter of Gold v Gartenstein, 100 Misc.2d 253.
418 U.S. 488, 496, quoting Bloom v Illinois, 391 U.S. 194, 211.
427 US, supra, at pp 624-625.
440 US, supra, at p 371, quoting Duncan v Louisiana, 391 U.S. 145, 159, supra.
II
Like the institution of marriage itself, prostitution is older than the common law. The District Attorney does not dispute that even if there were no incarceration involved, a prostitution conviction results in profound consequences for the person convicted. From biblical 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 "bawd" or a "harlot," a "biffer," a "trull," "pigmeat" or a "whore," the prostitute bears the opprobrium of "the fallen woman". 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 and visitation of her children; to expulsion from her residence; to exclusion from many forms of endeavor; and, with every expectation that her word of accusation will carry little weight in court (for, who would believe her?), to being freely raped.
See Griswold v Connecticut, 381 U.S. 479, 485-486.
Concerning the ancient character of rules aimed at "the world's oldest profession" (People v Smith, 44 N.Y.2d 613, 617-618; see People ex rel. Duntz v Coon, 67 Hun 523; People v Bailey, 105 Misc.2d 772, 773, n 1).
Although prostitutional activity of a purely private and clandestine nature was brought to the attention of the church courts in 13th 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; Austin v United States, 299 A.2d 545; Marshall v United States, 302 A.2d 746), by the time of the American common law, such activity was prosecuted in common law courts. (Rassmussen v United States, 197 U.S. 516; State v Waymire, 52 Or. 281; Warren v People, 3 Parker Cr Rep 544, 547, Miller v Commonwealth, 88 Va. 618; Ogden v City of Madison, 111 Wis. 413; Commonwealth v Wesley, 171 Pa. Super. 566; Gaithor v United States, 251 A.2d 644, 645.)
Nor is a common-law antecedent an indispensable requirement 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, supra [simple assault and battery which was not an indictable offense at common law]); Goldman v Kautz ( 111 Ariz. 431); United States v Newberne ( 427 F. Supp. 361, 362); e.g., Bloom v Illinois ( 391 U.S. 194, supra [criminal contempt, which, likewise, was not an indictable offense at common law]); see Cheff v Schnackenberg ( 384 U.S. 373, 381, n 1, supra [HARLAN, J., concurring]); United States v Barnett ( 376 U.S. 681, 696-697, at pp 750-751 [where Judge GOLDBERG dissented]).
See, also, District of Columbia v Clawans, 300 U.S. 617, 627, 630; City Ct. of City of Tucson v Lee, 16 Ariz. App. 449, supra; United States v Woods, 450 F. Supp. 1335, 1342-1345.
People v Bailey, 105 Misc.2d 772, 773, n 1, supra.
The New York Times (July 4, 1980, p 1) reported the execution by stoning of a woman convicted of prostitution in Iran.
Battles v Tyson, 77 Neb. 563; Conner v Niemiec, 25 A.D.2d 857; Civil Rights Law, § 77.
C. Winick P.M. Kinsie, The Lively Commerce (1971), p 41; People v Bailey, 105 Misc.2d 772, 773, n 1, supra.
Rosenbleet Pariente, The Prostitution of the Criminal Law, 11 Amer Crim L Rev 373, 391, citing Matter of Carey, 57 Cal.App. 297.
US Code, tit 8, § 1251, subd (a), par (12); Marlowe v United States Immigration Naturalization Serv., 457 F.2d 1314; Greene v Immigration Naturalization Serv. of Los Angeles, 313 F.2d 148.
US Code, tit 8, § 1182, subd (a), par (12).
S.T. Grand, Inc. v City of New York, 32 N.Y.2d 300.
See People v Anderson, Crim Ct N Y County, Part AP 3, Docket Nos. N9630498, 0N002954, July 10, 1980, p 3, SOLOFF, J.
Real Property Law, § 231; Multiple Dwelling Law, §§ 352, 353, 354 et seq. RPAPL 715 1980-1981 Pocket Part; Public Health Law, art 23, tit II, §§ 2320-2334; Administrative Code of City of New York, ch 16, tit C; Hauer v Manigault, 160 Misc. 758.
E.g., Alcoholic Beverage Control Law, § 102, subd 2, par (h).
McCarthy v McCarthy, 143 N.Y. 235; Moller v Moller, 115 N.Y. 466.
See People v Gonzalez, 96 Misc.2d 639.
Judges have described prostitutes as "malodorous and evil characters," perpetrators of "evil and wrongdoing," underminers of "public morals and decency * * * befitting 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, and narcotic possession and sale." They associate her with organized crime, public indecency, family instability, the blight of tourist and commercial areas, and the spread of venereal disease.
Remedco Corp. v Bryn Mawr Hotel Corp., 45 Misc.2d 586, 588.
Supra.
Hauer v Manigault, 160 Misc. 758, 759.
Supra.
People ex rel. Clark v Keeper of N.Y. State Reformatory for Women at Bedford, 176 N.Y. 465, 474 (GRAY, J., dissenting).
Rosenbleet Pariente, The Prostitution of the Criminal Law, 11 Amer Crim L Rev 373, 417; L'Hote v New Orleans, 177 U.S. 587, 596.
See People v Luciano, 277 N.Y. 348; Matter of P., 92 Misc.2d 62, 79-80, revd sub nom. Matter of Dora P., 68 A.D.2d 719.
Matter of P., supra, 92 Misc.2d, at p 82.
Supra, at pp 80-81; Caminetti v United States, 242 U.S. 470, 486-487.
People v Smith, 44 N.Y.2d 613, 618; People v James, 98 Misc.2d 755.
Public Health Law, § 2302; People v Johnson, 252 N.Y. 387; People ex rel. Krohn v Thomas, 133 Misc. 145; People v Anonymous, 161 Misc. 379, 383; Winick Kinsie, The Lively Commerce (1971), p 257.
At bottom, however, the quintessential thrust of the label "prostitute" is to denominate the creature to whom it is affixed as, through and through, unprincipled, a low life, one who would sell out any loyalty, desecrate any covenant, and, literally as well as characterologically as one willing to do just about anything for the right price. 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.
Carpenter v People, 8 Barb 603, 610-611; Caminetti v United States, 242 U.S. 470 487; United States v Bitty, 208 U.S. 393, 402.
Battles v Tyson, 77 Neb. 563, supra; defendants' brief, citing James, The Many Faces of Suicide: Indirect Self-Destructive Behaviors (1980), p 341 et seq., K. Davis, The Sociology of Prostitution, 2 Amer Soc Rev 744.
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.
The few judicial opinions concerning prostitutional 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, 3 Parker Cr Rep 544 [yes]; Miller v Commonwealth, 88 Va. 618 [yes]; People v Iverson, 46 App. Div. 301 [no]; People ex rel. Clark v Keeper, 176 N.Y. 465 [yes, by implication]; People ex rel. St. Clair v Davis, 143 App. Div. 579 [no, by implication]; People v Harding, 115 Misc. 298 [no].)
B. Other cases relate to local ordinances. (Wong v City of Astoria, 13 Or. 538 [no]; Ogden v City of Madison, 111 Wis. 413 [no]; Commonwealth v Wesley, 171 Pa. Super. 566 [yes]; Powers v State of Florida, 370 So.2d 854 [yes].)
C. One case, although apparently authoritative, is of old vintage and contains only sparce reference to the critical issue herein. (Rassmussen v United States, 197 U.S. 516 [yes].)
D. Other cases are premised upon two strained assumptions, 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 n 19, supra.) (Bailey v United States, 98 F.2d 306, supra [no]; Austin v United States, 299 A.2d 545, supra [no]; Marshall v United States, 302 A.2d 746, supra [no].)
E. 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, 399 U.S. 145 (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 CPL 340.40, subd 2; see Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 340.40, p 59; People v Long, NYLJ, June 21, 1979, p 10, col 6, p 11, col 1 [no]; see notes 11-17 and accompanying text, supra.)
F. 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 CPL 340.40 (subd 2). (People v Long, supra [no]; People v Taylor, Crim Ct N Y County, Part AP 1, Docket Nos. N4758, N4777, April 17, 1980, ROTKER, J. [no]; People v Anderson, Crim Ct, N Y County, Part AP 3, Docket Nos. N963049, 0N002954, July 10, 1980, SOLOFF, J. [no].)
III
Ironically, the governmental authorities of New York County treat the crime of prostitution as serious. Desk appearance tickets in lieu of arrest, used in a wide variety of misdemeanor cases including many involving moral turpitude and violence, are never used in prostitution cases. Accused prostitutes are always subjected to formal arrest.
CPL art 150; People v Izsak, 99 Misc.2d 543, 552; cf. People v Doe, NYLJ, April 6, 1979, p 12, col 3.
The Criminal Justice Agency routinely interviews defendants and submits reports to the arraigning Magistrate in every felony category and in every type of misdemeanor case except one, concerning defendants' eligibility to be released upon their own recognizance. The one exception is the case of prostitution, where those steps are never taken.
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 County; cf. People v C.S., Crim Ct, N Y County, Part AP 9, Docket No. N961405, Nov. 28, 1979, pp 3-4, BERKMAN, J.; NYLJ, Dec. 10, 1979, p 13, col 5.
Adjournments in contemplation of dismissal are granted upon the application of the District Attorney to first offenders in a wide variety of misdemeanor cases. The District Attorney never makes this application in prostitution cases.
CPL 170.55, Supp 1980-1981.
People v Izsak, 99 Misc.2d 543, 552; People v James, 98 Misc.2d 755; cf. People v Doe, NYLJ, April 6, 1979, p 12, col 3.
Likewise, the District Attorney freely consents to the acceptance of guilty pleas to reduced charges in countless categories of crime but never in prostitution cases.
People v James, 98 Misc.2d 755, supra; People v Izsak, 99 Misc.2d 543, 552, supra.
Only in prostitution cases does the District Attorney have a uniform and unremitting policy of opposing all defense motions to dismiss first offender cases in the interests of justice. No matter how desperate were the circumstances which brought the offense into being, no matter how catastrophic are the predictable consequences of conviction to the first offender, the District Attorney's unvarying position is that dismissal should be denied on account of prostitution's adverse impact upon the quality of life in New York County.
See CPL 170.40, Supp 1980-1981; see n 50, supra.
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, March 28, 1979, p 18, as quoted in defendants' brief.
The District Attorney thus shares with the community the disapprobation for those who mock and degrade sex by selling it commercially. Having shown the seriousness with which prostitution is regarded by the community and its designated officials, the District Attorney should not now say that such conduct is minor and that the attendant safeguard of trial by jury, before those accused can be convicted and branded, may be brushed aside.
IV
The court finds that prostitution, no matter how lightly punished, is a serious crime and may not be prosecuted without the right to trial by jury. To the extent that CPL 340.40 (subd 2) makes such trial unavailable in New York County, to wit, to these two defendants, that section contravenes the Sixth and Fourteenth Amendments to the Federal Constitution and is null. In light of this resolution of the motion, it is unnecessary to reach and pass upon defendants' "equal protection" claim.
The "objective" factor (District of Columbia v Clawans, 300 U.S. 617, 628, supra) as reflected in "the existing laws and practices in the Nation" (Duncan v Louisiana, 391 U.S. 145, 161, supra) is this: In at least 25 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 ( 399 U.S. 66) to a chart containing the authorized sentences for prostitution convictions as reported in 1973 national survey. (See Rosenbleet Pariente, The Prostitution of the Criminal Law, 11 Amer Crim L Rev 373, 422-426.)
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 month's imprisonment. 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).
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, n 17, supra) but later decided in conformity with the District Attorney's argument, in the lower court cases cited in note 46 F. of this opinion, 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 [Penal Law, § 230.00] and 10,286 loitering for prostitution cases [Penal Law, § 240.37]), a total of 15 cases went to trial (11 straight prostitution cases plus 4 loitering for prostitution cases). (See n 57, infra.)
Research has failed to disclose any comparable hard 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 in those cities yielded the impression that there had apparently been no prostitution jury trials in recent memory.
Motion granted. Trial by jury ordered. Order stayed 30 days to afford the District Attorney adequate time to pursue his legal options.
Gold v Gartenstein, 100 Misc.2d 253; People v Denning, 98 Misc.2d 369; and Matter of Morgenthau, NYLJ, March 21, 1980, p 13, col 3, are distinguishable from this case. They deal with CPL 340.40 (subd 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; etc. (See People v Joseph M., 84 Misc.2d 1046, 1047; cf. Matter of Felder, 93 Misc.2d 369.)
Gratitude is expressed to Deputy Borough Chief Clerk of the Court, George Bessinger, for his arduous statistical compilation of 1979 prostitution cases referred to in note 55, supra; to Kathy Friedman, Ellen Goldstein and John 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.