Opinion
2003-1481 Q CR.
Decided July 13, 2005.
Appeal by defendant from a judgment of the Criminal Court, Queens County (S. Paynter, J.), rendered September 25, 2003, adjudicating him a youthful offender on the underlying charges of assault in the third degree (Penal Law § 120.00) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Judgment adjudicating defendant a youthful offender unanimously affirmed.
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
Defendant was charged with assault in the third degree, a class A misdemeanor, which carries a maximum sentence not to exceed one year (Penal Law § 120.00; § 70.15 [1]). Defendant contends that the instant charge is a serious offense to which he is entitled to a trial by jury and that the applicable sections of the Criminal Procedure Law which mandate that youthful offenders be tried before a single judge are in violation of his constitutional rights ( see CPL 340.40).
The right to trial by jury of one's peers is a fundamental right guaranteed by both the Sixth Amendment of the United States Constitution (US Const, 6th Amend) and the Constitution of the State of New York (NY Const, art 1, § 2). The Supreme Court, in Duncan v. Louisiana ( 391 US 145), drew a distinction between "serious" and "petty" offenses, noting that those offenses deemed "petty" may be tried without a jury. In Baldwin v. New York ( 399 US 66, 69), the court held that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized" ( see also People v. Foy, 88 NY2d 742, 745; Matter of Morgenthau v. Erlbaum, 59 NY2d 143).
In Matter of Morgenthau v. Erlbaum ( 59 NY2d 143, supra), the court stated that since the misdemeanors with which the defendants therein were charged are punishable by a maximum term of imprisonment of three months, they were "petty" offenses within the meaning of the Sixth Amendment to which there is no right to a jury trial. The court further noted that recent Supreme Court decisions have emphasized the "length of sentence" to the exclusion of virtually all other criteria. The penalty is deemed of major relevance, a guage of the locality's social and ethical judgments on the heinousness of the offense ( see Duncan v. Louisiana, 391 US 145, 159-160, supra). In Lewis v. United States ( 518 US 322), the Supreme Court reiterated that the Sixth Amendment's guarantee of a jury trial is reserved for the prosecution of serious crimes, i.e., those carrying a maximum prison term greater than six months ( see also Codispoti v. Pennsylvania, 418 US 506).
While the crime of assault in the third degree, a class A misdemeanor (Penal Law § 120.00), carries a maximum sentence not to exceed one year (Penal Law § 70.15), inasmuch as defendant was between the ages of 16 and 19 years old, and had not been previously convicted of a crime or previously adjudicated a youthful offender, the court was mandated upon conviction to vacate same and replace it with a youthful offender finding (CPL 720.20 [b], [3]). The court was also required to try defendant without a jury (CPL 340.40) and, if convicted of the underlying offense, not to impose a definite or intermittent sentence of imprisonment of more than six months ( see CPL 720.20; Penal Law § 60.02). Moreover, a youthful offender adjudication is not a judgment of conviction for a crime and does not operate as a disqualification of any person so adjudged to hold public office or public employment or to receive any license granted by public authority (CPL 720.35). In addition, all books, records and papers must be sealed and are only available under special circumstances (CPL 720.35). The primary advantage of such treatment is the avoidance of the stigma and practical consequences which accompany a criminal conviction ( see People v. Cook, 37 NY2d 591, 595; see also People v. Drayton, 39 NY2d 580, 584-585). Based upon the foregoing, it is apparent that an adjudication of youthful offender, including the mandatory requirement that the sentence imposed not exceed six months, constitutes a "petty offense" and that the provision mandating that a youthful offender be tried by a single trial judge does not violate the constitutional rights to a trial by jury and equal protection of the law ( see People v. Denning, 98 Misc 2d 369 [App Term, 1st Dept 1979]; People v. Elliot, 157 Misc 2d 148; Matter of Gold v. Gartenstein, 100 Misc 2d 253).
Finally, we note that the other issues raised by defendant were not preserved for appellate review ( see CPL 470.65 [2]). However, even if properly before this court, we find them to be without merit.