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Law Enforcement Assistance Administration

Defendant, charged with robbery in the first degree and related offenses, moves for a dismissal of the indictment and for other forms of relief on the ground of discriminatory prosecution in that he is being prosecuted as a major offender by the Bronx District Attorney. The major offense program, which has been operating in Bronx County since July 2, 1973, with the financial assistance of the Law Enforcement Assistance Administration, is basically a program of accelerated prosecution. It is directed towards the perpetrator of the serious crime and the repeat offender. Its goal is to insure swift and certain justice for such malefactor.

As part of the program, the Bronx District Attorney’s office instituted a system of screening procedures which identifies those cases in which the crime is particularly heinous or the alleged offender is a serious recidivist. Those cases are then evaluated by the major offense bureau for selective prosecution. The criminal prosecution of major offense cases is marked by limited plea bargaining, full disclosure to defense counsel, immediate and thorough case preparation, and the assignment of a single assistant district attorney to handle a given case through all stages, from inception to conclusion.

A Bronx County Criminal lawyer said that in an evaluation of the bureau’s performance in the first three years of its existence, it was found that the median time between arrest and case disposition was 97 days compared to a median time of 400 days for all other felony cases prosecuted by the Bronx District Attorney. A comparison between major offense cases and a select group of similar cases from the caseload of the Bronx District Attorney’s Supreme Court bureau shows an overall conviction rate of 96% for the former and 84% for the latter; after trial, the conviction rate was 92% for the former and 52% for the latter. In cases prosecuted by the major offense bureau, 94% of those convicted were incarcerated as opposed to 79% in the comparison group cases. A survey of dispositions in a typical year since the program’s inauguration shows that the average maximum sentence for a defendant prosecuted by the major offense bureau is 10 years. In the comparison group the average maximum is 3.5 years.

Defendant’s moving papers consist of a rambling, prolix series of allegations, couched mainly in the form of rhetorical questions, attacking the legality of the major offender program. Without avowing any particular constitutional deprivation, criminal defendant seems to be implying that he is being denied some fundamental right by being selected for prosecution as a major offender. Such vagueness is due, no doubt, to the difficulty he has in recognizing just what right it is that he is being denied. He certainly cannot claim that he is being denied the right to a speedy trial. If anything, the program augments that right.

Generally speaking, the gravamen of defendant’s complaint seems to be that by being cast as a defendant in the accelerated prosecution program, he is being deprived of the right to be treated the same as other defendants in the criminal process. This argument is without merit.

At the root of this challenge is the oft-heard criticism that defendants prosecuted under the major offense program are being denied the plea bargain opportunities that are available to those not so prosecuted. There is, of course, no constitutional right to a plea bargain. In stating this principle, there is no intention here to disparage plea bargaining or gainsay its efficacy in the criminal justice system.

Plea bargaining does in fact occur in the overwhelming percentage of major offense prosecutions but not on terms in which the elements of delay and staleness of prosecution are a factor. In most instances, the plea offered is to the highest count of the indictment or to the next highest count. Doubtless, it is this feature of the program that is so distressing to a defendant. If there is a certain intransigence in the position of the prosecutor as regards his plea offer in a major offense case, it is due to the fact that his case is relatively strong, well prepared and free of the debilitating effect of delay.

It should be noted at the outset that the major offense program involves a decision by the District Attorney of Bronx County to prosecute certain individuals by means of a procedure different from what is used to prosecute the majority of those accused of the commission of felonies. It is not a decision to prosecute only certain types of crimes or individuals. If a particular defendant is not selected for prosecution under the major offense program, he is prosecuted nonetheless. In short, what is involved is selective prosecution, not selective enforcement.

The District Attorney of Bronx County is charged by statute to prosecute diligently and fairly every crime committed by an adult within his jurisdiction (County Law ยง 700, et seq.). He is an agent of the People, independent of the judiciary. Of necessity, he must be free to allocate his resources, in terms of manpower and finances, to discharge the duties of his office to the best of his ability. That includes the right to focus greater attention upon the prosecution of those charged with serious crimes and the career criminal.

The general rule in this state is that the grand jury has the power to investigate and indict regardless of what has occurred before the magistrate and regardless of whether the magistrate has held or discharged the prisoner or still has the matter pending, or of whether there has ever been such a preliminary hearing. A defendant has no constitutional or statutory right to a preliminary hearing as a condition precedent to a valid indictment.

In Bronx County, as the program is currently being implemented, there are two trial parts set aside solely for the disposition of major offender cases. There are available, of course, other parts to which the overflow of these cases may be sent for trial. The judges presiding in parts designated for hearing major offense robbery cases are aware that the defendants before them are labelled as major offenders by reason of either a record of recidivism or the serious nature of the crime charged. Parenthetically, it should be noted that the jurors do not know that the defendant is being prosecuted as a major offender. The trial part handling major offender cases is numbered as are all trial parts in Bronx County. No designation other than number identifies the courtroom. The indictment bears no special marking. The only question therefore which arises is whether the judge’s knowledge of the defendant’s background prejudices the defendant’s right to a fair trial so as to be constitutionally impermissible.

Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. But it has never been thought that such cases establish this Court as a rule-making organ for promulgation of state rules of criminal procedure. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases” “Tolerance for a spectrum of state procedures dealing with a common problem of law enforcement is especially appropriate here. The rate of recidivism is acknowledged to be high, a wide variety of methods of dealing with the problem exists, and experimentation is in progress”.

If the establishment of special parts facilitates the disposition of cases and contributes to the resolution of the chronic problem of trial delay then the Courts are properly exercising that power. In the final analysis, both the prosecutor and defense attorney, whatever their differences, should be in agreement on one basic theme, that is, that the “speedy disposition of criminal cases is desirable”

Accordingly, the Court held that the motion is denied in its entirety.

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