319 F. Supp. 524 | S.D.N.Y. | 1970
The petitioner’s application for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2241 et seq., is granted.
The petitioner alleges, and the court finds, that at the time of, and on several occasions subsequent to, his arraignment on a charge of possession of a dangerous drug, he requested a trial by jury.
The petitioner argues in support of his present application
In Duncan, the Supreme Court stated, inter alia:
Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to he tried in a federal court — would come within the Sixth Amendment’s guarantee.5
Our conclusion is that in the American States, as in the federal system, a general grant of jury trial for serious offenses is a fundamental right * * *6
In view of its determination that simple battery, which was punishable under Louisiana law by a maximum of two years’ imprisonment and a $300 fine, was “a serious crime and not a petty offense,” the Court found no need to settle the “exact location of the line between petty offenses and serious crimes.” 391 U.S. at 161-162, 88 S.Ct. at 1454. See Bloom v. Illinois, 391 U.S. 194, 211, 88 S.Ct. 1477, 1487, 20 L.Ed.2d 522 (1968). However, on June 22nd of this year, the Supreme Court found it necessary in a case challenging the constitutionality of the very same Section 40 of the New York City Criminal Court Act involved herein to state unequivocally what it clearly implied in Duncan,
An application such as the one here “shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254. The court finds that the petitioner’s case presents circumstances which preclude redress in the state courts, and if the underlying rationale of the above exception to the general requirement of exhaustion of state remedies is the “belief that the petitioner should not have to engage in an exercise in futility before he can get into a federal court;”
In view of the foregoing, the petitioner’s application for a writ of habeas corpus is granted, and the respondent is hereby ordered to release
So ordered.
. This allegation is not disputed in any way by the respondent.
. Section 40 of the New York City Criminal Court Act provides that “[a] 11 trials in the court shall be without a jury.”
. Criminal possession of a dangerous drug in the sixth degree is a class A misdemeanor, the sentence of imprisonment for which “shall not exceed one year.” See N.Y.Penal Law § 70.15(1).
. The application was referred to this court for determination on October 14, 1970. The respondent’s papers in opposition finally were filed on November 23, 1970.
. 391 U.S. at 149, 88 S.Ct. at 1447 (emphasis added) (footnote omitted).
. 391 U.S. at 157-158, 88 S.Ct. at 1452.
. The Court liad noted in Duncan, for example, that in the federal system “petty offenses are defined as those punishable by no more than six months in prison and a $500 fine” and that there were “only two instances, aside from the Louisiana scheme, in which a State denies jury trial for a crime punishable by imprisonment for longer than six months.” 391 U.S. at 161 and n. 33, 88 S.Ct. at 1453. The Court had also referred in both Duncan and another decision handed down at the same time, Dyke v. Taylor Imple
. R. Sokol, Handbook of Federal Habeas Corpus 171 (2d rev. ed. 1969). See generally id. at 171-77. A “principal aim of the writ [of habeas corpus] is to provide for swift judicial review of alleged unlawful restraints on liberty.” Peyton v. Rowe, 391 U.S. 54, 63, 88 S.Ct. 1549, 1554, 20 L.Ed.2d 426 (1968). This court has been informed that the petitioner may be released as a matter of course on January 28, 1971, and thus time alone would now appear to preclude state redress.
. See, e. g., Black, J., dissenting, DeBacker v. Brainard, 396 U.S. 28, 34, 90 S.Ct. 163, 24 L.Ed.2d 148 (1969).
. This ruling shall in no way be construed to mean that this court has found that the petitioner was not otherwise afforded a fair trial.