#### The People of the State of New York ex rel. Leo Borowiak, Appellant, *v.*William Hunt, Superintendent of Erie County Penitentiary, Respondent.

Fourth Department,

July 8, 1913.

Buffalo City Court —jurisdiction — punishment for misdemeanor — constitutional law.

The City Court of Buffalo, sitting as a Court of Special Sessions, may within the constitutional limitations sentence a defendant for the crime of petit larceny, which is a misdemeanor, to the penitentiary for a term of 340 days.

*849The provision of the Constitution which preserves the right of trial by jury is limited by its terms to those eases “in which it has heretofore been used,” and, hence, does not apply to cases heard in the Court of Special Sessions.

Appeal by the relator, Leo Borowiak, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 28th day of January, 1913, dismissing a writ of habeas corpus, and remanding relator to custody.

*Harlow C. Curtiss,*for the appellant.

*Wesley C. Dudley, District Attorney [Clifford McLaughlin*of counsel], for the respondent.

Robson, J.:

The relator was convicted in the City Court of Buffalo, sitting as a Court of Special Sessions, of the crime of petit larceny. He was thereupon sentenced to be confined in the Erie County Penitentiary for a term of 240 days. It is claimed by the relator that the sentence exceeded that which the City Court, sitting as a Court of Special Sessions, could within constitutional limitations be given the power to impose, and was for that reason void.

The crime of which defendant was convicted was a misdemeanor (Penal Law, §1299); and in the first instance was within the exclusive jurisdiction of the City Court of Buffalo, sitting as a Court of Special Sessions of the city of Buffalo, to hear and determine. (Laws of 1909, chap. 510, § 10, as amd. by Laws of 1910, chap. 228.) The court being a Court of Special Sessions, before the amendment above referred to the judgment which might be imposed by the court upon conviction of a defendant was limited by the provisions of section 711 of the Code of Criminal Procedure, and could not exceed a fine of fifty dollars and imprisonment for six months. That amendment in terms gave the court 1 *‘*power to impose and enforce sentence of fine or imprisonment, or both, in the discretion of the court, in all cases within its jurisdiction, upon conviction, to the same extent as the County Court of the county of Erie could do in like cases. ” *850The City Court of Buffalo is a local inferior court created by the Legislature. (Laws of 1909, chap. 570.) Section 18 of article 6 of the Constitution provides that inferior local courts of civil and criminal jurisdiction may be established by the Legislature; but it is also provided that a court so created shall not be a court of record, neither shall it have any equity jurisdiction or “ any greater jurisdiction in other respects than is conferred upon County Courts by or under this article.” The criminal jurisdiction of the City Court of Buffalo, sitting as a Court of Special Sessions, as extended by the amendment of 1910, above referred to, is, therefore, clearly within the letter of the Constitution, for it assumes to give that court power to impose sentence only to the same extent as the “ County Court of the county of Erie could do in like cases. ” But it is claimed that this amendment violates another constitutional provision, which is found in section 2 of article 1, which, so far as pertinent here, is that “The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” It is conceded that this provision is to be read in connection with section 23 of article 6, which provides that “Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.” It is further conceded, and the cases so hold, that the Legislature may give such courts exclusive jurisdiction to hear and determine all cases involving charges of offenses of that grade. *(People ex rel. Comaford*v. *Dutcher,*83 N. Y. 243; *People*v. *Austin,*49 Hun, 396.) The provision of the Constitution which preserves the right of trial by jury is limited by its terms to those cases “ in which it has been heretofore used.” It does not apply to cases heard in a Court of Special Sessions for the reason that trial by a constitutional jury, *i. e.,*a jury of twelve men, was not within the course of procedure in such courts, and had not been when this provision first appeared in the Constitution. *(People ex rel. Murray*v. Justices, 74 N. Y. 406.) It follows, therefore, that the statute giving the City Court, sitting as a Court of Special Sessions, exclusive jurisdiction to try and determine charges of misdemeanors, is not violative of that provision of the Constitution.

It is, however, urged that because no greater jurisdiction *851can be given that court than is given the County Court and because, if relator had been prosecuted in the County Court, he would have been entitled to trial by a constitutional jury, the jurisdiction and power of the City Court as a Court of Special Sessions has been by the statute above quoted extended beyond that of the County Court, in that the Court of Special Sessions can try and determine such cases without a constitutional jury. It is difficult to appreciate the force of this contention. Except for the limitation by section 711 of the Code of Criminal Procedure above referred to, of the power of Courts of Special Sessions to render judgment of fine and imprisonment in case of conviction, there could be little doubt that such courts would have the power to impose a fine or imprisonment, or both, within the limit prescribed by the statute as penalty for the particular misdemeanor of which defendant had been convicted. This limitation being statutory only it may of course be extended, or entirely removed, by subsequent legislation. The limitation never applied to the power of the County Court. The amendment removes it from the City Court of Buffalo, sitting as a Court of Special Sessions. The same argument as to the unconstitutionality of this City Court statute as it now exists in the amended form would have been equally persuasive that the statute as it existed before the amendment was unconstitutional. Before the amendment it could try and determine without a constitutional jury all charges of misdemeanors committed within the city of Buffalo, except charges of libel, which, if on proper application they had been directed to be prosecuted by indictment, could only have been tried and determined in a court of record with the aid of such a jury.

The order should be affirmed.

All concurred.

Order affirmed.