
    The People of the State of New York, Respondent, v. Robert Letterio, Appellant. The People of the State of New York, Appellant, v. Johh W. Kohler, Jr., Respondent.
    Argued October 21, 1965;
    decided December 30, 1965.
    
      
      Matthew Muraskin and Anthony F. Marra for appellant in the first above-entitled action.
    I. An accused being prosecuted for traffic violations in the Criminal Court of the City of New York must be informed of his right to counsel in accordance with the provisions of the Code of Criminal Procedure. (People v. Felberbaum, 9 N Y 2d 213; People v. Witenski, 15 N Y 2d 392; People v. Banner, 5 N Y 2d 109; People v. Marincic, 2 N Y 2d 181; People v. Bell, 306 N. Y. 110; People v. Finkelstein, 9 N Y 2d 342; Squadrito v. Griebsch, 1 N Y 2d 471; People v. Malmud, 4 A D 2d 86; Matter of Gross v. Macduff, 284 App. Div. 786.) II. Appellant had a constitutional right to the assistance of counsel. (Gideon v. Wainwright, 372 U. S. 335; Rideau v. Louisiana, 373 U. S. 723; Budd v. New York, 143 U. S. 517; Bute v. Illinois, 333 U. S. 640.) III. Appellant did not waive his right to the assistance of counsel. (Fay v. Noia, 372 U. S. 391; Matter of Bojinoff v. People, 299 N. Y. 145; People v. Brantle, 13 A D 2d 839.) IV. A fine, the nonpayment of which requires imprisonment, imposed upon one incapable of paying such fine, is excessive and, therefore, violative of section 5 of article I of the Constitution of the State of New York and the Eighth and Fourteenth Amendments to the Constitution of the United States. (Pilkinton v. Circuit Ct. of Howell County, Missouri, 324 F. 2d 45; Mastrian v. Hedman, 326 F. 2d 708; Griffin v. Illinois, 351 U. S. 12; People ex rel. Lobell v. McDonnell, 296 N. Y. 109; United States v. Doe, 101 F. Supp. 609; Douglas v. California, 372 U. S. 353; Wildeblood v. United States, 284 F. 2d 592.)
    
      Aaron E. Koota, District Attorney of Kings County (Raymond J. Scanlan, Harry Brodbar and David Diamond of counsel), for appellant in the second above-entitled action.
    I. Since defendant was charged with a traffic infraction only, in the absence of specific statutory authority there is no constitutional mandate which requires that such defendant be advised of his right to the aid of counsel (Squadrito v. Greibsch, 1 N Y 2d 471; People v. Felberbaum, 9 N Y 2d 213; Gideon v. Wainwright, 373 U. S. 335; People ex rel. Thompson v. Noble, 231 F. Supp. 188.) II. The court below erred in construing the Court ¡Reorganization and Consolidation Acts of 1962 as evincing an intent on the part of the Legislature to mandate that Judges of the Criminal Court of the City of New York admonish all persons charged with traffic infractions, and that they are entitled to the aid of counsel at every stage of the proceeding. (People v. Witenski, 15 N Y 2d 392; People v. Banner, 5 N Y 2d 109; People v. Marincic, 2 N Y 2d 181; People v. Brantle, 13 A D 2d 839; People v. Mullhearn, 22 Misc 2d 689; People v. Coyle, 18 Misc 2d 262; Matter of Tonis v. Board of Regents, 295 N. Y. 286; Dean v. Metropolitan El. Ry. Co., 119 N. Y. 540; Patrikes v. J. C. H. Serv. Stas., 180 Misc. 917, 180 Misc. 927, 266 App. Div. 924.)
    
      Frank S. Hogan, District Attorney of New York County (Eric A. Seiff and Michael Juviler of counsel), for respondent in the first above-entitled action.
    I. Defendant’s plea of guilty to 10 traffic infractions was properly entertained; there was neither a statutory nor a constitutional mandate that he be advised of his right to counsel when answering such charges. (People v. Felberbaum, 9 N Y 2d 213; Gideon v. Wainwright, 372 U. S. 335; People v. Witenski, 15 N Y 2d 392; District of Columbia v. Clawans, 300 U. S. 617; Callan v. Wilson, 127 U. S. 540; Schick v. United States, 195 U. S. 65.) II. The sentence was constitutional. (State v. Naczas, 8 Wis. 2d 187; Ex parte Brady, 70 Ark. 376; United States ex rel. Privitera v. Kross, 239 F. Supp. 118, 345 F. 2d 533; People v. Watson, 204 Misc. 467; Matter of McKinney v. Hamilton 282 N. Y. 393; Chapman v. Selover, 225 N. Y. 417.)
    
      Charles Spar for respondent in the second above-entitled action.
    I. A defendant accused in the Criminal Court of the City of New York of a traffic violation must be informed of his right to counsel. (People v. Felberbaum, 9 N Y 2d 213; Gideon v. Wainwright, 372 U. S. 335.) II. The failure to inform defendant-respondent of his right to counsel to defend him violates the Sixth Amendment of the United States Constitution. (Squadrito v. Griebsch, 1 N Y 2d 471; People v. Fiore, 9 Misc 2d 468; People v. Sperbeck, 5 Misc 2d 849; People v. Witenski, 15 N Y 2d 392; Betts v. Brady, 316 U. S. 455.)
   Scileppi, J.

Both above-named defendants were convicted of traffic violations in the Criminal Court of the City of New York. Both appealed their convictions to the Appellate Term, asserting that the convictions should be reversed because in each case the court did not advise the defendant of his right to be represented by counsel, but merely inquired whether the defendant was ready to proceed without counsel. In Kohler’s case, the Appellate Term reversed, one Justice dissenting, on the ground that the defendant in a traffic case must be advised of his right to counsel. In Letterio’s case, the Appellate Term affirmed the conviction, but modified the sentence.

We are here faced with the question whether there is any statutory or constitutional requirement that the defendant charged with a traffic infraction be apprised of his right to counsel and to an assignment of counsel. For the reasons stated below, we hold there is no such requirement.

Much argument is made in the present cases that section 41 of the New York City Criminal Court Act now requires that the provisions of section 308 of the Code of Criminal Procedure be followed in all parts of the Criminal Court of the City of New York. When section 41 was enacted onr decision in People v. Felberbaum (9 N Y 2d 213) was the law in this State. In light of the clear holding in that case that no statute required the then Magistrates’ Court of the City of New York to advise one charged with a traffic infraction of his right to counsel, we cannot be persuaded that the general language of section 41 is the corrective legislation we suggested in Felberbaum (9 N Y 2d 213, 216). In fact, the express purpose of the New York City Criminal Court Act is merely to merge, under one name, all the operations of the erstwhile Court of Special Sessions of the City of New York and the City Magistrates’ Court of the City of New York (Fifth Report of Joint Legislative Committee on Court Reorganization, reprinted in McKinney’s Cons. Laws of N. Y., Book 29A, Judiciary—Court Acts, Pt. 3, pp. 325-326). Thus, we agree with Mr. Justice Schwartzwald (People v. Kohler, 45 Misc 2d 692, 700) that in enacting section 41 of the New York City Criminal Court Act the Legislature did not manifest an intention to overrule Felberbaum. The most recent expression of the Legislature’s views on the right to counsel in traffic cases is in the new article 18-B of the Code of Criminal Procedure (L. 1965, ch. 878) where the Legislature expressly excepts those charged with traffic infractions from the class of those who are to be included under the new statutory scheme for providing counsel to indigent defendants. We conclude that this new statute shows that the Legislature has not departed from the state of the law as it was at the time we decided Felberbaum, and that the court in the City of New York having jurisdiction of traffic infractions is under no statutory duty to inform a defendant of his right to counsel.

Nor do we find any constitutional mandate requiring the court hearing a traffic case to advise the defendant of his right to counsel. While some may say that the right to counsel extends to all crimes, we say that neither our State nor the Federal Constitution requires the court having jurisdiction of a petty offense, like a traffic infraction, so to advise the defendant. Our State constitutional right to counsel (art. I, § 6) is assured by appropriate statutes (e.g., Code Crim. Pro., §§ 188, 308, 699) and, as we have pointed out, these statutes are not controlling in the cases at bar. The right to counsel as ordained by the Federal Constitution (Gideon v. Wainwright, 372 U. S. 335) has been considered to extend to misdemeanor cases (Harvey v. State of Mississippi, 340 F. 2d 263), but even the Federal courts recognize the possibility of a rule limiting the implementation of the right to counsel in the prosecution of petty offenses (see McDonald v. Moore, 353 F. 2d 106).

There are, historically, certain minor transgressions which admit of summary disposition. New York has long deemed traffic infractions as a form of misconduct distinguishable from more serious breaches of the law or crimes (Penal Law, § 2; Vehicle and Traffic Law, § 155). While not controlling, we believe that this time-honored distinction supports our conclusion that a traffic court need but assure the defendant a fair forum in which to be heard. As a practical matter, the traffic court Judge often sits as prosecutor, defense counsel, and Judge. Neither this triune function, nor the failure of a traffic court Judge to advise the defendant that he may have counsel, is so unfair as to require the result urged by the dissenters.

We point out that the practical result of assigning counsel to defendants in traffic cases would be chaotic. Assigning counsel in but 1% of these millions of eases could require the services of nearly half the attorneys registered in the State. (See Tenth Annual Report of Judicial Conference [N. Y. Legis. Doc., 1965, No. 90], p. 205.)

We find no unfairness in the treatment accorded the defendants herein. Accordingly, in People v. Kohler, the order of the Appellate Term should be reversed and the judgment of conviction affirmed. In People v. Letterio, the judgment of the Appellate Term should be affirmed.

Bergan, J. (concurring).

The basic concept of the traffic infraction is that a traffic violation is not a crime and the violator not a criminal. The traffic infraction was first created by a law enacted in 1934 (L. 1934, ch. 485) after it had become apparent that, with a misdemeanor criminal status attached to convictions even for minor traffic violations, the automobile drivers of the State, a generally law-abiding and responsible group of citizens then rapidly increasing in number, were incurring misdemeanor convictions in vast number.

Accordingly, the Vehicle and Traffic Law was amended to provide in what is now section 155 that “ [a] traffic infraction is not a crime and the * * * punishment imposed therefor shall not be deemed for any purpose a penal or criminal * * * punishment, and shall not affect or impair the credibility as a witness, or otherwise, of any person convicted thereof.” By the same statute of 1934, the definitions of “ crime ” in section 2 of the Penal Law were amended to state “Except that the acts defined as traffic infractions by the vehicle and traffic law * * * heretofore or hereafter committed, are not crimes. ’ ’

The retroactive form of the statute had the effect of wiping out countless prior criminal convictions. Besides this, the statutes were careful to spell out the effect of a conviction for a traffic infraction as having no adverse effect on credibility or reputation (cf. Penal Law, § 2444).

A traffic violation in-New York carries a penalty, but it is not a criminal penalty even though the procedural forms of law followed in criminal courts are, as a matter of judicial convenience, also employed in traffic cases (Vehicle and Traffic Law, § 155). The penalty is something in the nature of a community sanction or civil penalty but it is not in any respect punishment for a crime. There may be a fine and, in extreme but very rare cases, a jail sentence, but these too are similar to certain civil compulsions which the law exerts.

We should not, therefore, as a matter of consistency, apply to the noncriminal class of offense all the weight and the solemn constitutional procedural mechanisms that we have learned to apply to criminal cases. The distinctions that have been carefully spelled out by the Legislature in this class of offense render it unwise as a matter of policy to treat traffic offenders as we treat persons charged with crime.

There is no constitutional need to assign counsel in such a case nor to advise that there is a right of counsel and no requirement of statute to this effect and the policy reasons which would safeguard persons accused of crime by this advice have no real application to traffic infractions. The Constitution expressly refers to “ criminal prosecutions ” in providing for “ Assistance of Counsel ” (U. S. Const., 6th Amdt.).

Thus in normal course, if public authorities conscientiously prosecute the summonses they issue for traffic infractions, the penalty is small and the charge has no consequence to the standing or reputation of the vehicle operator.

The charges against appellant Letterio, considered individually as they arose, would have been routine traffic violations. They have become significant in totality and merited a jail sentence because they were not enforced as they arose.

They were not enforced because of the inexcusable failure of defendant to answer a number of traffic summonses, and the consistent failure of public authority to follow up the summonses for court appearances that had been formally issued or to execute the warrants that had been signed by Judges.

A government is bound at all costs to enforce its commands if it hopes to preserve public order. If the community gives notice by neglect and long inaction that it will make no effort to enforce the law until the violator has been able with safety to accumulate large numbers of unprosecuted violations, it invites both violations and a general refusal to respond to summonses.

Good citizens will honor the summons, but indifferent citizens will sit tight and wait for an accumulation of violations large enough to catch up with them. Adequate traffic enforcement cannot be made to stand on the honor of the good citizen to come in and be fined. It must be enforced regularly and consistently and merits whatever effort and expense may be required.

Since this case involves the failure to enforce judicial mandates, it affects judicial policy significantly and is a concern and responsibility of this court.

In the case of respondent Kohler the traffic infraction was aggravated by the nature of the speed of respondent’s car, but neither this nor the penalty imposed altered the fact respondent was not charged with a crime and the prosecution was not a criminal prosecution.

The judgment in the case of Letterio should be affirmed and in the case of Kohler reversed.

Chief Judge Desmond (dissenting).

Just a few months ago, in People v. Witenski (15 N Y 2d 392), we held that the defendant’s constitutional rights were violated by the failure to notify him of his right to assignment of counsel even though the amount involved in the alleged theft was no more than $2 and the imprisonment ordered was for a few days only. Now the majority is holding that this constitutional right somehow disappeared in the present cases simply because the Legislature chose to label these wrongdoings as “ traffic infractions ” rather than “ crimes ”, and even though the penalties here imposed are far greater than those in Witenski and include not only substantial fines but imprisonment for considerable periods. Because we do not believe that constitutional rights are so readily abolished, we dissent. The majority attempts to justify this cavalier treatment by describing a supposedly chaotic result which, so they prophesy, would result from assigning counsel to vast numbers of defendants in traffic cases. It is true that in each of the years 1964 and 1965 (the latter estimated) there were in the Criminal Court of the City of New York about two million prosecutions on such charges. Of course we are not suggesting that counsel be assigned to these vast multitudes. In New York City in such cases about 98% of the defendants it appears plead guilty and there is no question of assignment of counsel as to them. As to the 2% who plead not guilty we are not insisting that counsel be assigned but only that they be told, if they are indigent, they may have assigned counsel. Since almost all of these defendants are either owners of automobiles or employed as drivers of automobiles the number who could successfully plead indigence would be very small indeed. Furthermore, the dissenters would require that the notification as to the availability of assigned counsel be limited to those cases only (“ moving violations ”) where there is possibility of substantial punishment. In the large cities and in the few instances therein where a demand is made for such assignments in traffic infraction cases the Legal Aid Society could readily handle this small additional burden.

It is true that by an amendment to section 699 of the Code of Criminal Procedure effective December 1, 1965 (see L. 1965, ch. 878) the Legislature has attempted to create an exception where only traffic infractions ” are charged to the general requirement that a person charged with any criminal offense must be informed as to his right to assigned counsel if he claims indigence. Curiously enough that attempted exception does not run as to violations of local ordinances. Necessarily the purported exception is invalid, under the rationale of People v. Witenski (15 N Y 2d 392, supra) and similar cases, at least when the prosecution is for “ moving violations ” for which sentences which include substantial imprisonment are authorized.

We express no new idea when we urge that, where imprisonment threatens, constitutional guarantees as to counsel must apply to “ non-serious ” as well as “ serious ” offenses. We quote the following from Evans v. Rives (126 F. 2d 633, 638 [1942]) cited with approval earlier this year by another United States Court of Appeals in Harvey v. State of Mississippi (340 F. 2d 263, 271): “ It is further suggested by the District of Columbia that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of ‘ serious offenses.’ No such differentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. The purpose of the guaranty is to give assurance against deprivation of life or liberty except strictly according to law. The petitioner would be as effectively deprived of his liberty by a sentence to a year in jail for the crime of non-support of a minor child as by a sentence to a year in jail for any other crime, however serious. And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction between loss of liberty for a short period and such loss for a long one.” We call attention, too, to a rule adopted June 29, 1964, by the Supreme Court of Massachusetts and requiring that a defendant be told about his right to counsel and assignment of counsel, whenever charged with any crime for which a sentence of imprisonment may be imposed. (See 347 Mass. 809.)

In People v. Letterio, the first above-entitled cause, the defendant appeals from a judgment which (as modified in defendant’s favor by the Appellate Term) sentenced him to a fine of $1,030 (or in default of payment to 135 days’ imprisonment) plus 42 days’ imprisonment. This judgment followed defendant’s plea of guilty before a Judge of the Criminal Court of the City of New York to 10 “ traffic infractions ” (see Vehicle and Traffic Law, § 155; N. Y. City Crim. Ct. Act, § 31) consisting of 7 instances of speeding in his automobile and 3 other “ moving ” violations. The Appellate Term, except as to modifying the penalties, affirmed without opinion.

In the case second above entitled (People v. Kohler) defendant after a trial before another Judge of the Criminal Court of the City of New York was found guilty of a “ traffic infraction ” being a speeding violation and was sentenced to pay a fine of $100 or in default of payment to serve 30 days in the workhouse and, in addition, a term of 10 days’ imprisonment was ordered to which was added the suspension of defendant’s automobile operator’s license for six months. At the Appellate Term the judgment was reversed and a new trial ordered.

On each of these present appeals (by the defendant in Letterio and by the People in the Kohler case) the question is the same: was the defendant deprived of any rights, statutory or constitutional, by the failure of the Trial Judge to inform defendant fully as to his right to counsel including assignment of counsel? In the Letterio case when the case was called for trial the “ bridgeman ” (court attache) in the presence of the Judge asked defendant: “ Are you ready to proceed in this court without a lawyer?” Defendant answered: “Yes, sir”. In the other case (Kohler) the Judge asked defendant: “ Do you want a lawyer ? ’ ’ Defendant Kohler said: “ No ”. The meaning of the colloquy in each ease was the same, that is, defendant on being questioned told the court that he had no lawyer and was ready to go on without one. The trouble is that neither defendant was told that he had a right to have counsel assigned to him nor indeed was he informed that he had a right to retain counsel and to have an adjournment for that purpose (see People v. Marincic, 2 N Y 2d 181; People v. Witenski, 15 N Y 2d 392, supra). This brings us to the inquiry as to whether in the Criminal Court of the City of New York, in prosecutions for so-called traffic violations or offenses which are not crimes in the sense of being felonies or misdemeanors, there is any requirement of constitutional or statutory law that the court spell out for defendant his right to be represented by a lawyer and to have a lawyer assigned to him if he cannot afford to retain one. We conclude that there is.

The majority opinion in Kohler’s case held that section 41 of the New York City Criminal Court Act (effective in 1962 when the new Criminal Court came into existence) overruled People v. Felberbaum (9 N Y 2d 213). The Felberbaum holding was that there was no statute requiring a New York City Magistrate, in a prosecution on a speeding charge under the New York City Traffic Regulations, to inform the defendant of his right to the aid of counsel. In Felberbaum it was decided by this court that as of 1961 neither section 699 of the Code of Criminal Procedure nor any other statute made such a requirement. While a constitutional question was urged and passed on in Felberbaum, it was not the constitutional issue as to right of counsel but a supposed problem as to lack of equal protection of the laws in that section 699 of the Code of Criminal Procedure required notice to defendant of his right to counsel in the up-State counties where section 699 applied, whereas the special New York City statutes then governing the Magistrates’ Courts contained nothing of the sort. The Felberbaum opinion in this court pointed out that ‘1 an alteration in the law can only be accomplished by the Legislature” (9 N Y 2d 213, 216, supra). We hold that section 41 of the Criminal Court Act as enacted in 1962 made that alteration.

The Kohler majority opinion concluded that section 41 of the new New York City Criminal Court Act as passed in 1962 means that there must be given to defendants in these traffic violation cases the same full notice as to counsel as is specifically required of other courts elsewhere by section 699 of the Code of Criminal Procedure. Among other things, section 41 contains this language: “ All sections of the code of criminal procedure consistent with this act regulating and controlling the practice and procedure of the county courts shall apply, as far as may be, to the practice and procedure in the court, and in each of the parts thereof, and shall regulate and control the practice and procedure of the court, insofar as its jurisdiction and organization will permit.” Read literally—and we see no reason to read it any other way—this incorporates the requirements of sections 188, 308 and 699 of the Code of Criminal Procedure which, as we have held in People v. Witenski (15 N Y 2d 392, supra), all mean about the same thing and all require notice to a defendant not only of his right to be represented by counsel at a trial or plea but to be notified specifically that if he cannot afford to pay a lawyer the court will assign one to him. Not only does section 41 mean this on any reasonable reading but under the Witensld holding (supra) it would be unconstitutional if it were more restrictive.

The dissenting Justice at the Appellate Term in Kohler’s ease wrote that it had not been shown that section 41 of the New York City Criminal Court Act was intended to require that notice as to the right to counsel be given in the New York City Criminal Court on trials for mere offenses or infractions. He concluded, therefore, that People v. Felberbaum (9 N Y 2d 213, supra) was still the law of the Criminal Court. Even if he were correct as to this there would still remain the constitutional rule expressed in People v. Witenski (15 N Y 2d 392, supra) that, at least where there is a possibility of punishment by imprisonment, the Federal and State Constitutions require that a defendant have and be informed of the right to have counsel assigned to him if he be indigent.

In People v. Letterio defense counsel suggests another and much more sweeping reason for reversal. His submission is that any system of punishment is unconstitutional which permits imprisonment for inability to pay a fine since this favors the man with money as against the one who cannot pay. Decision of these appeals does not require us to go to this point.

The briefs for the People on both those appeals make much of the historic and presently existing difference between “ crimes ” (that is, felonies and misdemeanors) on the one hand, and 1 ‘ offenses ” or “ infractions ’ ’ on the other. These latter petty violations do, of course, differ in grade and importance from crimes but, as we remarked in Squadrito v. Griebsch (1 N Y 2d 471, 476, 477), “ We may not simply say that a ‘ traffic infraction ’ is not a crime, ’ and that that is the end of the matter ’ ’, since traffic infractions are “to be treated as misdemeanors as far as the procedure for their prosecution” is concerned (see, to the same effect, People v. Hildebrandt, 308 N. Y. 397, and People v. Firth, 3 N Y 2d 472, 474). The only effect of dubbing these minor violations as “ infractions ” or “ offenses ” is that they do not appear on the offender’s record as “ convictions of a crime ” (see Vehicle and Traffic Law, § 155).

In People v. Letterio the judgment should be reversed and the case returned to the Criminal Court for further proceedings not inconsistent with this opinion. In People v. Kohler the judgment should be affirmed.

Judges Dye, Van Voorhis, Burke and Bergan concur with Judge Scileppi, Judge Bergan in a separate opinion in which Judge Dye also concurs; Chief Judge Desmond dissents and votes to affirm in an opinion in which Judge Fuld concurs.

As to Kohler: Order of the Appellate Term reversed and the judgment of the Criminal Court of the City of New York, Kings County, reinstated.

As to Letterio: Judgment affirmed.  