D., In re

• Decision Date: 09 April 1970
• Citation: 310 N.Y.S.2d 82,34 A.D.2d 41
• Parties: In the Matter of Daniel Richard D., a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 82

310 N.Y.S.2d 82

34 A.D.2d 41

In the Matter of Daniel Richard D., a Person Alleged to be a Juvenile Delinquent, Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 9, 1970.

Mackenzie, Smith, Lewis, Michell & Hughes, Syracuse, for appellant (Dennis G. O'Hara, Syracuse, of counsel).

Eli Gingold, Syracuse, for respondent (Hugh C. Gregg, II, Syracuse, of counsel).

Before GOLDMAN, P.J., and WITMER, GABRIELLI, MOULE and HENRY, JJ.

OPINION

GABRIELLI, Justice.

In a case of first impression, we are called upon to determine whether the Sixth and Fourteenth Amendments to the U.S. Constitution require a jury trial in a Family Court proceeding charging appellant with being a juvenile delinquent based on an act which, if committed by an adult, would constitute a felony and thus entitle him to a jury trial.

On January 29, 1969 appellant, then 15 years of age, was charged with being a juvenile delinquent in having intentionally shot and killed his father. The accusation and petition filed, further charged that the described acts, 'if done by an adult, would constitute the crime * * * of Murder (Violation of Section 125.25 of the Penal Law of the State of New York)'.

Following his arraignment, extended argument was had upon his motion for a jury trial. This application was denied by written decision on March 10, 1969. On the following day the court, by written decision and order, also denied appellant's motion for an order to require the County Attorney 'to establish that the respondent (appellant herein) committed the acts stated in the petition' by proof beyond a reasonable doubt. The court then directed that the fact-finding hearing be commenced two days later. In the interim, appellant was denied a stay by a member of this court and, on the following day (the day set for the hearing), his application for an adjournment to obtain a Federal Court review of the constitutional questions, was denied by the court below. Appellant again unsuccessfully renewed his motions for a jury trial or, in the alternative, for a ruling that without a jury trial he could not be subjected to a sentence of greater than 1 year. A brief recess was then taken during which there was an off-the-record conference between counsel for appellant, the court and the Assistant County Attorney.

Following the conference the latter announced that if appellant would admit the allegations of a new petition charging him with an act which, if performed by an adult would be a violation of Section 120.25 of the Penal Law, he would thereafter move for a dismissal of the old petition. Section 120.25 of the Penal Law provides that the crime of reckless endangerment in the first degree is committed when one engages in conduct which creates grave risk of death to another, the punishment for which is a maximum of 7 years' imprisonment, if committed by an adult. Upon his admission of this charge, appellant was subsequently adjudged a juvenile delinquent and committed to the New York State Agricultural and Industrial School for a period not to exceed three years. Appeal is taken from this adjudication and order of commitment. It is well to note here that upon a finding of juvenile delinquency the possible punishment on the withdrawn charge is commitment to Elmira Reception Center for a similar term. (Family Court Act, § 758(b), (c)).

In denying appellant's motion for a direction regarding the burden of proof the court held that there is no requirement 'to establish that the respondent committed the acts alleged in the petition by proof beyond a reasonable doubt but (only) as required by section 744--b by a proponderance of the evidence'. Section 744(b) of the Family Court Act, in pertinent part provides that:

'Any determination at the conclusion of a fact-finding hearing that a respondent did an act or acts must be based on a preponderance of the evidence.'

In so holding, the court erroneously deprived appellant of a fundamental right which has now been held by the Supreme Court to be constitutionally protected, requiring the burden of proof to be beyond a reasonable doubt. (In the Matter of Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (dec. March 31, 1970)). Section 744(b) of the Family Court Act, insofar as it requires a quantum of proof by a mere preponderance of the evidence is, therefore, declared unconstitutional.

It is urged that the admission of the acts alleged in the second petition was the result of a bargain made by this 15 year old boy and, therefore, he may not now disclaim this voluntary 'plea'. The dissenting justice has bottomed his conclusion and reasoning on the argument that 'appellant's admission of the allegations of the new petition and his commitment should be sustained on the ground that it was sought by him and freely taken as a part of a bargain which was struck for his benefit'. We are unable to subscribe to any theory or suggestion that a youth of this age has the capacity to waive or 'bargain' away any of his constitutional rights or, indeed, that such a theory could be adopted under the circumstances so glaringly present in this case. Of equally compelling importance, the record clearly shows that neither the second petition nor appellant's admission was considered until after the denial of the last of his several motions for a jury trial. Significantly the first petition, to which appellant's motions were originally addressed, was not dismissed until after the second petition was acted on. Additionally, we reach the inescapable conclusion that appellant was effectively denied his fundamental right of a hearing under a constitutionally protected right to a jury trial as well as rules requiring that proof of the commission of the charged acts be beyond a reasonable doubt and, therefore, his admission of the acts contained in the substituted petition was extracted in an impermissible manner. (cf. Nieves v. United States, 280 F.Supp. 994, 1001).

In the light of all of the described circumstances the admission, then, was not voluntarily made but rather was the result of the denial of his motions for a jury trial, the denial of adjournments prior to his 'admission' of the charges and the ruling as to the required burden of proof, all of which effectively constituted instruments of coercion as to his admission of the acts alleged in the second petition. As we view the totality of these proceedings, we conclude that appellant has been denied the essentials of due process and was deprived of these constitutional rights.

The decisions in Matter of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 and Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 have, it seems to us, foreclosed the answer to the question regarding his right to a jury trial. In Duncan, the Supreme Court held that the Fourteenth Amendment made applicable to the states the Sixth Amendment right to a jury trial in serious crimes and further (391 U.S., at p. 159, 88 S.Ct. at p. 1453) that 'the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment', and then further declared that a crime punishable by two years in prison is a 'serious crime'. Matter of Gault, supra, dealt directly with certain constitutional safeguards of juveniles charged with being delinquents as a result of committing criminal acts. While the question as to the right to a jury trial was not there present, the Supreme Court held that juveniles were entitled to notice of the issues involved, benefit of counsel, protection against compulsory self-incrimination, and confrontation of the witnesses against them. It defies the power of reason to interpret the Constitution as allowing these rights to persons charged with being delinquents based on criminal acts, and yet denying them a jury trial, a right which is certainly one of the fundamental aspects of justice in the English-speaking world. Behind the facade of the charge of juvenile delinquency in this case is the serious charge of murder or of attempted murder.

Having determined in Gault that a child must, as a matter of due process, be afforded certain constitutional rights on the ground that the child may 'be found to be 'delinquent' and subjected to the loss of his liberty for years', and since he is in a situation which 'is comparable in seriousness to a felony prosecution' (387 U.S., at p. 36, 87 S.Ct. at p. 1448), it follows then that the safeguards available to adults may not be disregarded in a child's case. Hence, there is an inescapable conclusion that a finding of delinquency based on the allegations and facts here presented ought to be made only after the right to a jury trial has been afforded.

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 effect of Duncan on certain provisions of the New York City Criminal Court Act and held that section 40 of the Act (authorizing non-jury trials in Misdemeanor cases) was constitutional but directed that reformatory terms of up to four years could not be imposed on young offenders between 16 and 21 and, thus, effectively held that they could be sentenced to a maximum of one year. We may, therefore, conclude that the court designated as 'serious' a charge which could result in confinement for more than one year.

We have recently held in People v. Sawyer, 33 A.D.2d 242, 306 N.Y.2d 494 that one charged with being a youthful offender is effectively denied due process when he is required to consent to a non-jury trial as a prerequisite for treatment as a youthful offender. We there determined, as others have held (People v. A.C. (Michael) (Anonymous), 32 A.D.2d 554, 300 N.Y.S.2d 816; People v. C. (Jerome) (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), that such a requirement is...