Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 7, #1

Issue: Defendant’s Right to Jury Trial with a Misdemeanor

A defendant who is charged with a crime is, generally speaking, entitled to a jury trial. This right has one variant -- with a class B misdemeanor. With this offense level, whether the trial right exists depends on whether or not the case is pending in New York City. If there, the class B misdemeanor is a bench trial.

This is set forth in the Criminal Procedure Law. Section 340.40(2) states: “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, . . . 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 maximum punishment on a class B misdemeanor is a 90 days, thus in New York City Criminal Court, the trial is nonjury.

Thus, upstate, and even downstate -- Nassau and Suffolk counties -- on a class B a misdemeanor, the defendant is entitled to a jury trial of six persons. Any waiver of jury trial must follow the requirements of CPL 320.10(2) -- in writing and executed in open court. The right to a jury trial, and waiver thereof, is set forth in the New York State Constitution, art. 1, § 2.

In New York City Criminal Court, a common stratagem of prosecutors is to reduce a class A misdemeanor to a class B misdemeanor so as to avoid a jury trial. This is proper. People v Burke, 186 Misc2d 278, 715 NYS2d 603 (City Crim Ct 2000). Refiling a charge as an attempt rather than a completed crime will reduce a charge by one step -- from a class A misdemeanor to a class B misdemeanor.

However, a reduction cannot be to a nonexistent crime. One cannot attempt to commit a crime whose definition encompasses an attempt. For example, Resisting Arrest includes within its definition an attempt to resist arrest. A number of other crimes such as witness tampering include attempts as well. A defendant cannot be tried for such a hypothetical or nonexistent crime. People v Vega, 185 Misc2d 73, 712 NYS2d 283 (City Crim Ct 2000).

Where the charges include both violation-level offenses (for which there is no jury trial right) and a misdemeanor, and a jury trial is conducted, all of the charges are decided by the jury. CPL 340.40(3).


"If the English language made any sense, a catastrophe would be an apostrophe with fur."  Doug Larson

watershed rule

State and Federal. A new procedural rule that implicates fundamental fairness and accuracy of the criminal proceeding, and is applied retroactively. Guzman v US, 404 F3d 139 (2d Cir 2005); People v Breazil, 191 Misc2d 817, 744 NYS2d 818 (Sup Ct 2002).


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