Luis R, Matter of

• Decision Date: 03 April 1979
• Citation: 98 Misc.2d 994,414 N.Y.S.2d 997
• Parties: In the Matter of LUIS R, a Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York City Court

Page 997

414 N.Y.S.2d 997

98 Misc.2d 994

In the Matter of LUIS R, a Person Alleged to be a Juvenile Delinquent, Respondent.

Family Court, City of New York, New York County.

April 3, 1979.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, by Roger W. Frydrychowski and Robert J. McGuirl, Asst. Dist. Attys., New York City, of counsel, for the State.

Charles Schinitsky, The Legal Aid Society Juvenile Rights Division, Brooklyn, N. Y., by Thomas V. Curtis, and Janet R. Fink, New York City, of counsel, for respondent.

DECISION and ORDER

RICHARD D. HUTTNER, Judge:

The respondent, LUIS R, stands accused of having committed two (2) misdemeanors and a felony, to wit: unlawful imprisonment in the first degree (P.L. 135.10).

By virtue of F.C.A. § 731(2) and F.C.A. § 712(h)(v) (as amended by "The Juvenile Justice Reform Amendment of 1978," Ch. 478, effective September 1, 1978), the District Attorney moves this court to amend the petition by marking same "designated felony act petition" prominently on its face. It is conceded that F.C.A. § 712(h)(v) is applicable since respondent's prior record in this court includes two (2) prior felony findings. Furthermore, the District Attorney seeks to prosecute the case in the place of the corporation counsel of the City of New York, F.C.A. § 254-a, in a special "designated felony act" part, F.C.A. § 117(b)(i). ¹

At the outset, the court is constrained to dismiss the respondent's contention that marking the petition as a designated felony act petition violates respondent's right to a fair and impartial fact finder and denies him due process of law.

This court cannot agree that a judge is incapable of rendering an impartial verdict because he is aware of a respondent's prior record. A judge is a professionally schooled fact finder. He cannot be equated with the layman juror who may, at most, sit on a jury intermittently together with five or eleven peers. A judge, however, on a daily basis, determines where truth resides. Daily, he must, under the scrutiny of counsel, abate his own feelings and emotions to assure his impartiality. Daily, he navigates alone through the fog created by the disputed issues of litigation, by silver-tongued litigants and attorneys. Daily he searches for the truth, the discovery of which is made even more difficult by counsel's sophisticated and persuasive arguments. Our state's highest court has held a judge, ". . . by reasons of his learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination . . . . While a jury may sometimes be confused by the legal intricacies of deciding two questions together, a Judge will not be so disoriented." People v. Brown, 24 N.Y.2d 168, at p. 173, 299 N.Y.S.2d 190 at p. 193, 247 N.E.2d 153, at p. 155 (1969).

In fact, in practice many juveniles are known to judges due to prior appearances before them concerning delinquency matters. This is especially true in counties of this state where either one or two judges preside. Remarkably, the Supreme Court of the United States has held that even a juror's impartiality is unaffected by knowledge of a defendant's prior criminal record provided he is admonished by the court not to take it into consideration on the question of guilt or innocence. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Likewise in the Matter of Jose L., 64 A.D.2d 598, 407 N.Y.S.2d 155 (1st Dept. 1978), the court held that in a juvenile delinquency hearing, the judge's awareness of a respondent's prior record does not make a fair, impartial trial impossible. It is apparently settled law that a trial judge's knowledge of a respondent's prior criminal history does not, per se, affect that respondent's right to a fair and impartial trial.

Another argument of constitutional dimension is made by the law guardian. It is contended that F.C.A. § 712(h)(v) is unconstitutional as it violates the prohibition against ex post facto laws. U.S.Const. Art. I, § 10, cl. 1. This argument, too, is devoid of merit. In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the court stated that recidivist statutes are not violative of the prohibition against ex post facto laws. Predicate offender laws do not violate the Constitution "since they do no more than describe circumstances under which increased punishment may be imposed by a sovereignty." People v. Wilson, 13 N.Y.2d 277, at p. 281, 246 N.Y.S.2d 608, at pp. 611-12, 196 N.E.2d 251, at p. 253 (1963). The punishment is not for past crimes, but for the present one. The present conviction merely triggers the statute which may result in additional punishment. People v. Starks, 78 Misc.2d 87, 355 N.Y.S.2d 906 (Sup.Ct., Queens Co. 1974), aff'd 53 A.D.2d 1066, 385 N.Y.S. 695 (2nd Dept. 1976); People v. Pray, 50 A.D.2d 987, 376 N.Y.S.2d 691 (3rd Dept. 1975); People v. Kelly, --- N.Y.S.2d ---- (Sup.Ct., Kings Co. 1979); People v. Matthews, 87 Misc.2d 327, 384 N.Y.S.2d 939 (Sup.Ct., Westchester Co. 1976).

Remaining for consideration is respondent's contention that F.C.A. § 750 is in conflict with sections 117(b), 254-a and 731(2) of the Family Court Act. F.C.A. § 750(1) provides:

"All reports or memoranda prepared or obtained by the probation service shall be deemed confidential information . . . . Such reports or memoranda Shall not be furnished to the court prior to the completion of the fact-finding hearing and the making of the required findings (emphasis added)."

The Probation Department's reports and memoranda must contain the respondent's prior delinquency findings. 9 N.Y.C.R.R. 350.4(a)(c), General Order No. 17-77, Probation Department, City of New York, December 21, 1977, section 200.04, 200.08.

F.C.A. § 750 specifically prohibits the trial judge from being made cognizant of the respondent's prior record. The application of F.C.A. § 731(2) and F.C.A. § 254-a operates to bring the respondent's prior felony findings to the court's attention.

When statutes are in conflict, it is the overriding legislative intent that must prevail. It is the duty of the court to harmonize conflicting provisions. McKinney's Statutes, § 98(b). The effort must be to carry out the legislative intent. It is the duty of the court to consider the statutory scheme, history and purpose and harmonize the inconsistencies in such a way as to carry out that intent. If necessary, it may disregard specific provisions inconsistent with the intent. Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335, 274 N.Y.S.2d 881, 884, 221 N.E.2d 546, 549 (1966). I am of the opinion that the legislative intent of each statute can be harmonized without disrupting the legislative intent of either enactment.

The legislative intent in marking a petition "designated felony act" is succinctly stated in the Matter of Francis L. and Juan B., D-2701/78, D-2891/78 (Fam.Ct., Queens Co. Dec. 8, 1978). The issue before that court was exactly the same as here. The Honorable Yorka Linakis stated, "To prominently mark to (sic) petition 'Designated Felony' (as per § 731(2), and to have District Attorney prosecute the petition (as per § 254-a of F.C.A.) and to have the proceeding prosecuted in a "Designated Felony" part (as per F.C.A. § 117(b)(i) reflects a legislative intent and design incorporating two fundamental and compelling interests of the State . . . (1) to protect the community from further crimes by juveniles who repeatedly commit felony offenses; (2) to protect, shelter and give greater attention to the children who, as a consequence of their acts, demonstrate need of special treatment or care (see F.C.A. paragraph 711)." This court fully concurs in the brief but cogent statement as to the intent of each statute. In Matter of Robert D., 411 N.Y.S.2d 482 (Fam.Ct., N.Y.Co. 1978) the identical issues were before the court. In each case, the petitions were permitted to be marked "designated felony act petition" and they were presented by the District Attorney in special hearing parts. I dissent from these decisions of my learned colleagues.

But my dissent is not premised upon the alleged constitutional infirmities urged by respondent, for I find none to exist. Nor is it founded upon the alleged inability of a judge to remain impartial once he has knowledge of a respondent's prior record. Rather, my dissent is based upon the clear and overriding intent of F.C.A. § 750 that a judge shall not be advised of a respondent's record prior to the completion of the fact finding hearing.

The delinquency hearing is a bifurcated affair, divided into a fact-finding stage and a dispositional stage, F.C.A. sections 712(f), (g), 742, 743, 746. It is at the fact-finding stage that the court determines by evidence beyond a reasonable doubt, whether the petition's allegations have been sustained. F.C.A. § 744. At the dispositional hearing, the issues of treatment, confinement and supervision, or dismissal of the petition are considered. F.C.A. § 712(g); Matter of Edwin R., 67 Misc.2d 452, 323 N.Y.S.2d 909 (Fam.Ct., N.Y.Co. 1971).

Beyond cavil, the respondent's prior record becomes an essential ingredient and must be considered by the court at a dispositional hearing in order to determine what disposition is in the respondent's and society's best interests. F.C.A. sections 711, 750(3), (4), 753-a. The respondent herein does not dispute this.

There is no legitimate interest of the state served by spreading a respondent's record before the court prior to a fact-finding hearing. Simply stated, it is immaterial to the fact-finding process and can only cause mischief by needlessly calling into question the impartiality and integrity of the court. As I have stated, as have the highest court of this state and Nation, unquestionably a judge possesses the capacity to rule dispassionately notwithstanding knowledge of a respondent's prior record. However, since awareness of this respondent's prior record serves no...