New York Criminal Lawyer Blog
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. Declaratory relief, on the other hand, 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 declaratory 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 constitutional validity of a statute. This court generally has held that the latter is proper; the former is more circumscribed.
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. 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. 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 prosecutors 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 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 subjects. 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. As a corollary, the action for declaratory judgment cannot seek any injunction against the individual defendant or the criminal court.
Applying these factors to the instant proceeding, it is apparent that declaratory relief is proper. Judge 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. 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 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 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 prostitution laws; the legal, moral, and psychological implications of prostitution; and the importance private citizens and public officials 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 respondent’s stumbles at its threshold. Although earlier cases may have considered various factors of a sex crimes, 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. “In ordinary criminal prosecutions, the severity of the penalty authorized, not the penalty actually 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”.
Under this standard, it must be concluded that, as applied to criminal prostitution charges, CPL 340.40 (subd. 2) does not violate the 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 presumed to 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 different 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 declaratory 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, the defendants in the criminal action.