People v. Sawyer

• Decision Date: 15 January 1970
• Citation: 33 A.D.2d 242,306 N.Y.S.2d 494
• Parties: PEOPLE of the State of New York, Respondent, v. Ronald H. SAWYER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 494

306 N.Y.S.2d 494

33 A.D.2d 242

PEOPLE of the State of New York, Respondent, v. Ronald H. SAWYER, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Argued Dec. 4, 1969.

Decided Jan. 15, 1970.

Donald L. Austin, Utica, for appellant.

Arthur A. Darrigrand, Utica, for respondent.

Before [33 A.D.2d 245] MARSH, J.P., and WITMER, MOULE, and BASTOW, JJ.

OPINION

BASTOW, Justice.

An indictment was returned against appellant and another charging them in two counts with (1) robbery, second degree, and (2) attempted robbery, second degree (Penal Law, §§ 160.10, 110.00). The Grand Jury did not recommend youthful offender treatment although appellant's age would have made him eligible therefor. (Code Crim.Proc. §§ 913--e, 913--g.)

Upon arraignment in October, 1968 counsel for appellant requested a preliminary investigation to determine defendant's eligibility for such treatment. In connection therewith appellant and his attorney executed a written consent which in part provided that if found eligible for adjudication as a youthful offender 'I consent to be tried without a jury, should a trial be had.'

Such consent, of course, was mandated by subdivision 3 of section 913--g of the Code which provides, in part, that as a condition to the making of an order that a defendant be investigated for youthful offender treatment he must consent to a trial without a jury. If, following the investigation, the court determines that the defendant is eligible for such treatment he must enter a plea of 'guilty' or 'not guilty' to the charge of being a youthful offender (Code Crim.Proc. § 913--g(4)). In the event of a 'not guilty' plea a summary trial before the court follows (Ibid. § 913--h). If the defendant enters a plea of guilty or is found guilty after trial of committing the acts charged in the indictment 'the court shall adjudge (him) to be a youthful offender' (Ibid. § 913--j).

It is now established that '(i)nsofar as its immediate effect and consequences are concerned, the adjudication, involving as it does a finding that the defendant is guilty of a crime, Code Crim.Proc., § 913--e, after a plea of guilty or a trial, and carrying with it the possibility of a commitment, Code Crim.Proc., § 913--m; Correction Law, § 61, and the preservation of the defendant's finger-print records by the division of identification of the Correction Department, Code Crim.Proc., § 913--o, has all the essential features of a conviction as that term is ordinarily understood by lawyers and laymen alike. Cf. Blaufus v. People, 69 N.Y. 107, 109. In our opinion, it is a conviction within the meaning of section 395 of the Code Criminal Procedure.' (People v. Shannon, 1 A.D.2d 226, 231--232, 149 N.Y.S.2d 550, 555, affd. 2 N.Y.2d 792, 158 N.Y.S.2d 334, 139 N.E.2d 430.)

The outlined statutory procedure was followed herein. Defendant was found eligible for adjudication as a youthful offender, plead guilty to an information (based on one count of the indictment) charging him with being a youthful offender and was sentenced (Code Crim.Proc. § 913--m) to Elmira Reformatory (Penal Law § 75.00), which, of course, permitted imprisonment for a period up to four years. (Ibid. § 75.10.) These proceedings, of course, post-dated the decision on May 20, 1968 of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (cf. People v. Ruiz, 24 N.Y.2d 926, 301 N.Y.S.2d 988, 249 N.E.2d 766).

It has been held that subdivision 3 of section 913--g and section 913--h of the Code of Criminal Procedure, insofar as they require one between the ages of 16 and 19 to consent to a summary trial without a jury to render one eligible for youthful offender treatment, are unconstitutional (People v. Michael A.C. (Anonymous), 32 A.D.2d 554, 300 N.Y.S.2d 816; People v. Jerome C. (Anonymous), 32 A.D.2d 840, 303 N.Y.S.2d 218; Matter of Saunders v. Lupiano, 30 A.D.2d 803, 292 N.Y.S.2d 44; Nieves v. United States, D.C., 280 F.Supp. 994). We agree with these decisions of courts of concurrent jurisdiction. While the statute provides that such a determination shall not be deemed a conviction (Code Crim.Proc. § 913--n) it is a 'conviction' for a 'serious' crime insofar as appellant is concerned who finds himself incarcerated in a penal institution for a period up to four years.

In Matter of Hogan v. Rosenberg, 24 N.Y.2d 207, 299 N.Y.S.2d 424, 247 N.E.2d 260 the court considered the impact upon certain provisions of the New York City Criminal Court Act of the decision in Duncan v. Louisiana, supra, 391 U.S. 145, 88 S.Ct. 1444 which decision the court stated (24 N.Y.2d p. 213, 299 N.Y.S.2d p. 427--428, 247 N.E.2d p. 263) 'should be read for the proposition that statutes which make crimes punishable by imprisonment for terms of two years or more are to be viewed as serious, notwithstanding how the people of a particular jurisdiction might characterize the crime.' The court concluded (p. 221, 299 N.Y.S.2d p. 434, 247 N.E.2d p. 267) that section 40 of the New York City Criminal Court Act (authorizing non-jury trials of misdemeanors) was constitutional as to young adults between the ages of 16 and 21 but that the Criminal Court was deprived of 'jurisdiction to impose a reformatory sentence on young adults pursuant to article 75 (of the revised Penal Law) in the absence of legislation authorizing a jury trial in such cases and providing procedural machinery therefor.'

The record herein clearly establishes that appellant was sentenced to Elmira Reformatory pursuant to the provisions of Article 75 of the Penal Law. It follows that the trial court was deprived of jurisdiction to impose such a sentence. Moreover, the crime (robbery, second degree)...