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Penal Law § 110.00…cont

Penal Law of 1909 § 2 defined an attempt to commit a crime as “[a]n act, done with intent to commit a crime, and tending but failing to effect its commission.” The drafters of the current Penal Law § 110.00 intentionally omitted the reference to lack of consummation because an attempt is no longer precluded by the fact that the crime was completed. Penal Law § 110.00 states in pertinent part: “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” When the Legislature enacted section 110.00 of the Penal Law it omitted the requirement that in order for someone to be guilty of an attempt, the underlying crime must not have been consummated. The omission of this requirement permits the People to overprove their case, e.g., to prove the actual assault where a charge of attempted assault is brought. Thus, in the case at bar, the People may properly reduce the charge from assault in the third degree to attempted assault in the third degree and criminal possession of a weapon to attempted criminal possession of a weapon.

The defendant maintains, however, that the People cannot reduce the charges on the eve of trial so as to deprive defendant of a jury trial. The defendant argues that the reduction of the charges on the eve of trial constitutes prosecutorial vindictiveness, prejudices the defendant and is an abuse of discretion.

The case at bar is distinguishable from a former case. In that case, the court has held that a reduction on the eve of trial, depriving the defendant of a jury trial, constituted abuse of prosecutorial privilege in the absence of good cause for such a belated reduction. Further, the charges were reduced from criminal possession of a controlled substance in the fifth degree to attempted possession, which would have arguably altered the defense strategy.

In the case at bar, the court holds that there was no abuse of prosecutorial privilege as the reduction of the charges was raised after the case had been adjourned for trial for a period of three weeks. Furthermore, the case was reduced from a charge of assault in the third degree to attempted assault in the third degree, which is not inherently so different so as to alter the defense strategy. The People exhibited no vindictiveness in reducing the charge as they left ample time before trial for the defense to prepare a proper defense strategy, and they did not attempt to hide the true nature of the charge from the defense.

The United States Supreme Court has held that the 14th Amendment guarantees defendants in State criminal trials the right to a jury trial provided for in the 6th Amendment.

In the case at bar, the defendant has moved the court for an order granting a jury trial if the People are permitted to reduce to a B misdemeanor, on the grounds that CPL 340.40 (2) is unconstitutional on its face in that it is in violation of the Equal Protection Clause of the 14th Amendment and the 6th Amendment right to trial by jury by excluding defendants in New York City Criminal Courts from the same right to a jury trial afforded to defendants in criminal courts outside of New York City.

This issue has been decided by the Court of Appeals in a case, where the Court held that CPL 340.40 (2) does not violate the 6th Amendment as applied to a defendant charged with prostitution, inasmuch as prostitution in not a “serious” offense within the meaning of the 6th Amendment guarantee of trial by jury, as it is only punishable by a maximum of three months’ imprisonment. In Morgenthau, two women accused of prostitution moved for a trial by jury. The defendants argued that CPL 340.40 (2) was unconstitutional since it deprived them of their 6th Amendment right to a jury trial and denied them the equal protection of the law. The Criminal Court granted their motion although the sentence was not “serious” and therefore not protected under the 6th Amendment. The Court of Appeals rejected this argument and held that defendants were not entitled to a jury trial.

In the instant case, defendant maintains that the State of New York has failed to demonstrate a compelling State interest that would necessitate a disparity in the right to a jury trial for the people in New York City. Defendant’s undocumented and unsubstantiated claim is without merit. The use of single Judge trial in the City of New York is aimed at increasing the number of cases tried in Criminal Court. In selected cases, the prosecutor will move to reduce class A misdemeanors to class B misdemeanors in order to avoid time-consuming jury trials. Reduction of charges carries with it the additional benefit to the defendant by reducing exposure to punishment upon conviction.

Accordingly, defendant’s motion for an order precluding the People from reducing the charges or in the alternative granting the defendant a jury trial on the reduced charges is denied without a hearing.

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