Issue before the Court: Whether, under Herring v. New York, 422 U.S. 853 (1975), a criminal defendant has an absolute right to deliver a summation in a bench trial, notwithstanding CPL 350.10, which allows the trial judge in a bench trial in a local criminal court to “waive” summations.

 

Held: No holding on this.  The Court reversed the conviction because the defendant, on trial for a B misdemeanor, ended up with 90 days in jail, thus triggering the Sixth Amendment right to counsel.  The Court described Herring as (so far) applicable only to trials on indictments, even though the Herring ruling was not so limited.  And in a footnote the Court expressly left open the “unpreserved” questions whether CPL 350.10 violates Herring where the defendant eventually received no jail time, or whether the court’s action violated CPL 170.10, which provides for the right to counsel in the local criminal court.

 

CAL Observes: Presumably, faced with the question whether to allow summations, a trial judge in a bench trial needs to parse out in advance whether, in the event there is a conviction, the judge intends to impose a jail sentence.  If no, the judge can waive summations; if yes, then summations must be allowed.  (Actually, we thought the trier of fact is not supposed to think about the sentence while guilt has yet to be determined.)  Since the defendant was on trial for a misdemeanor, clearly he had the right to counsel at trial, regardless of what the sentence would end up being.  The Court’s decision is nonsensical, even if the result –a reversal–was correct here.  Can some trial attorney please preserve the issue as a constitutional question?  Please?