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CPL 340.40 (subd. 2)


Respondent is a Judge of the Criminal Court of the City of New York, New York County. In 1981, two women accused of prostitution, which carries a three-month maximum sentence, appeared before the respondent Judge and moved for trial by jury. The defendants argued that CPL 340.40 (subd. 2), directing that crimes punishable by not more than six months’ incarceration shall be heard before a Judge, was unconstitutional because it deprived them of their Sixth Amendment right to jury trial and denied them equal protection of the law. The court granted their motion, reasoning that, notwithstanding its relatively minor sentence, prostitution is a “serious” crime with a concomitant right to trial by jury. The defendants’ equal protection argument was not reached.

A New York Criminal Lawyer said that, petitioner, the District Attorney of New York County, commenced this proceeding to prevent respondent’s order from taking effect. Initially, the matter was instituted under CPLR article 78 to obtain a writ of prohibition. Petitioner moved to convert the proceeding into an action for declaratory judgment after this court stated that prohibition is not available to attack a criminal court’s ruling that a statute denying a trial by jury is unconstitutional. Special Term granted the motion to convert and declared that CPL 340.40 (subd. 2) is constitutional. The Appellate Division, First Department, affirmed, but without opinion.

The issues in this case are: first is the procedural propriety of an action seeking declaratory relief that, in effect, collaterally attacks a criminal court’s ruling. The other matter, assuming that the action is proper, is whether CPL 340.40 (subd. 2) violates the Sixth Amendment.

In determining whether an action for declaratory judgment lies in the present circumstances, it is helpful to distinguish the action from the extraordinary remedy of prohibition, and to examine the policies underlying the decisions limiting the issuance of writs of prohibition.

A writ of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity ” ‘without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction’. It may not issue against legislative, executive, or ministerial action. The decision to issue the writ is left to the court’s sound discretion, which is to be exercised after consideration of various factors. In light of the reluctance to interfere with the normal, orderly administration of justice, an important factor is the adequacy of other legal remedies to correct the asserted error; if there is an adequate “ordinary” remedy, then there is no need to invoke an extraordinary remedy.

With reference to declaratory relief, it should first be noted that it is not an extraordinary remedy. Instead, a declaratory judgment “is a remedy sui generis and escapes both the substantive objections and procedural limitations of special writs and extraordinary remedies”. Unlike prohibition, its use is not limited to reviewing public acts of a judicial nature. Rather, it has broad application, being invoked to declare rights derived from both private and public law, and from both civil and criminal statutes. Critically, declaratory judgment does not entail coercive relief, but only provides a declaration of rights between parties that, it is hoped, will forestall later litigation. In other words, the declaration in the judgment itself cannot be executed upon so as to compel a party to perform an act or to surrender property.

In summary, declaratory relief is available in a wider range of circumstances than is prohibition. The jurisdictional impediments to obtaining declaratory judgment are virtually coextensive with those to any normal lawsuit, while a writ of prohibition, by definition, may be granted only in restricted situations. Insofar as strictly jurisdictional factors are concerned, then, there is nothing to bar a District Attorney from seeking an interpretation of a penal statute.

Accordingly, the order of the Appellate Division should be modified by striking the declaration that respondents are not entitled to a jury trial on the charges of prostitution pending against them in New York City Criminal Court actions and by dismissing the petition as to respondents and, as so modified, affirmed, without costs.

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