Opinion
January 21, 1932.
Jacob Jacobson [ A. Benjamin Ravin of counsel], for the petitioner.
Guy B. Moore, District Attorney [ Spencer Cleveland of counsel], for the respondents.
This application for an order of prohibition to restrain the City Court of Buffalo and the judges thereof from proceeding with the trial of the above petitioner, after the refusal of his demand for a trial by jury upon the charge of a violation of section 986 of the Penal Law, a misdemeanor, is clearly within the decision of the Appellate Division, Fourth Department, in Matter of Cooley v. Wilder, rendered January 6, 1932 ( 234 A.D. ___). This case holds that while in trials like this of an offense of the grade of misdemeanor, by the provisions of the Code of Criminal Procedure, sections 699 et seq., the defendant is within his statutory rights in demanding that he be tried by a jury of six, the occasion is not one permitting resort to the drastic remedy of prohibition; because, if conviction follows a trial without a jury of six men, after such demand has been made, an appeal may be taken, upon which appeal every claim made by the defendant upon the trial may be urged, and every determination of law or fact be reviewed.
Upon the authority of the above case the application in this proceeding must be denied.