People ex rel. Browne v. Kendall

• Citation: 308 N.Y.S.2d 572,62 Misc.2d 196
• Court: New York County Court
• Decision Date: 06 February 1970
• Parties: The PEOPLE of the State of New York ex rel. Chester Edward BROWNE, Relator-Petitioner, v. Glenn M. KENDALL, Superintendent of New York State Vocational Institution, West Coxsackie, New York, Respondent.

Page 572

308 N.Y.S.2d 572

62 Misc.2d 196

The PEOPLE of the State of New York ex rel. Chester Edward

BROWNE, Relator-Petitioner, v. Glenn M. KENDALL, Superintendent of New York State

Vocational Institution, West Coxsackie, New York,

Respondent.

Greene County Court.

Feb. 6, 1970.

[62 Misc.2d 197] Alan Francis Ruf, Catskill, for Chester Edward Browne.

Louis J. Lefkowitz, Atty. Gen., Timothy F. O'Brien, Asst. Atty. Gen. of New York, for the State.

DECISION

HENRY F. WERKER, Judge.

This is a habeas corpus proceeding.

The petitioner, Chester Edward Browne, was indicted by the Grand Jury of the County of Oswego on November 18, 1968 for Burglary in the Third Degree and Petit Larceny.

On the same day he was arraigned before Honorable Don H. Stacy, County Judge of the County of Oswego, who assigned Robert Amdursky as counsel for petitioner.

On November 25, 1968 petitioner accepted Mr. Amdursky as his attorney and pleaded not guilty to the indictment. The Grand Jury and the District Attorney recommended that petitioner be investigated as to his eligibility for Youthful Offender treatment. Mr. Amdursky informed the Court that petitioner had been advised of his rights with respect to the consent to be investigated for Youthful Offender treatment and had signed the consent.

The Court questioning Mr. Browne asked him if he had read the consent, understood it and signed it, to all of which questions Browne answered in the affirmative.

The consent read in part as follows:

'I hereby consent to be investigated and examined and to be tried without a jury, if that should become necessary, in order to determine whether I should be adjudged a youthful offender'.

The petitioner again appeared in Court with assigned counsel on January 13, 1969. He was arraigned as a Youthful Offender and the following allocution occurred between the Court and petitioner:

'THE COURT: Upon this arraignment as a Youthful Offender, how do you plead, guilty or not guilty? If you plead not guilty or stand mute, you will be tried before the Court without a jury, having waived a jury trial. If you plead guilty, it is equivalent to a finding of guilty after a hearing before the Court without a jury, and you will be adjudged a Youthful Offender.

DEFENDANT: Guilty.

THE COURT: As I said before, you understand that a plea of guilty is the same thing as if you had been found guilty after a trial before the Court without a jury?

DEFENDANT: Yes, sir.

THE COURT: Any promises been made to you what the punishment will be?

DEFENDANT: No.

THE COURT: Knowing all that, how do you plead?

DEFENDANT: Guilty.'

(S M Oswego County Court, p. 6)

The petitioner was then sentenced to the Correction Department of the State of New York for a reformatory sentence. This sentence is for an indeterminate period not in excess of four years. (Penal Law Article 75).

The petitioner is no stranger to the Courts. On April 29, 1964 he was adjudicated a juvenile delinquent for willful trespass. On March 23, 1966 he was warned by letter with respect to another willful trespass. On November 18, 1966 he received intake counselling on a charge of Petit Larceny. On October 11, 1968 the petitioner having been indicted for Grand Larceny Third Degree (1 Count), Burglary Third Degree (3 Counts) and Petit Larceny (1 Count) was investigated and found eligible for Youthful Offender treatment. He pleaded guilty to the charge of being a Youthful Offender and was placed on probation for a period of 5 years under the supervision of the Onondaga County Probation Department. (Petitioner's Exhibit 7, page 2).

Just one month later on November 10, 1968 he was arrested on the charge of Burglary Third Degree which resulted in his indictment, investigation as a Youthful Offender and again a plea of guilty which he now asserts has resulted in his illegal detention.

The record indicates that the petitioner was not required to plead guilty to the indictment in order to obtain Youthful Offender treatment as alleged in his petition. (Page 15A). He pleaded not guilty to the indictment. (S M Oswego County Court, page 3).

Petitioner upon the hearing of this matter of January 28, 1970 had no clear recollection of the proceedings which took place in the Oswego County Court nor those in the Onondaga County Court.

The petitioner's prayer for relief is that the plea and adjudication thereon as a Youthful Offender be vacated and that petitioner be remanded to Oswego County Court for repleading on the ground that the proceedings had under the Code of Criminal Procedure Part VI Title VII--B, Section 913--m, subd. 1(d), as provided by the Penal Law, Article 75, Laws of 1967, Chapter 324 and Code Crim.Pro. Section 913--g, Subd. 3 and Section 913--h deprived the petitioner of a trial by jury and were null and void absent due process of law and equal protection of law in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States.

The crime with which defendant was charged by the indictment. namely, Burglary in the Third Degree is classified as a Class D Felony ( § 140.20 Penal Law) and is punishable by a maximum sentence of seven years, ( § 70.00(2)(d) Penal Law), although an alternative sentence of one year or less is authorized ( § 70.05 Penal Law) under special circumstances. The Court may fix a minimum sentence of not more than one third of the maximum but must state its reasons therefor. ( § 70.00(3)(b)).

Penal Law Section 75.00(1) and (2) provides that a young adult is a person more than 16 years of age and less than 21 years of age and that a reformatory sentence may be imposed on such persons in lieu of any other sentence of imprisonment. Section 75.10 of the Penal Law provides that a reformatory sentence shall be four years less any amount of time credited against the sentence.

The Code of Criminal Procedure § 913--m dealing with Youthful Offenders provides that upon the adjudication of a person as a Youthful Offender the Court must impose one of the sentences set forth and one of those sentences if '(d) A reformatory or an alternative local reformatory sentence of imprisonment;' or '(e) The definite sentence of imprisonment that would be authorized if the Youthful Offender had been convicted for the criminal act for which he was adjudicated a Youthful Offender.'

Section 913--g of the Code of Criminal Procedure sets forth the procedure for Youthful Offender treatment and is entitled 'Determination of eligibility.' Subdivision 3 of that section contains the following language:

'* * * And the defendant consents to physical and mental examinations, if deemed necessary, and to investigation and questioning, and to a trial without a jury, should a trial be had * * *' (Italics supplied.)

Section 913--h entitled 'Summary trial' provides that if a plea of not guilty to the charge of being a Youthful Offender is entered 'The trial shall be held by the court without a jury'.

The Sixth Amendment of the Constitution of the United States provides:

'Amendment VI. Jury trial for crimes, and procedural rights.--In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense.'

The Fourteenth Amendment so far as it is applicable provides: 'Section 1, Citizenship rights no to be abridged.--All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

The Constitution of the State of New York, Article I § 2 provides:

'(Trial by jury; how waived)

'Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver.'

There can be no question that the crime charged by the indictment is a serious crime due to the fact that it is punishable by a maximum term not in excess of seven years. There is no question that the reformatory sentence imposed upon the petitioner is also for a serious offense since it can be for a maximum period of four years. The guilt of a Youthful Offender is determined by proof of the underlying crime charged and, in practice, the seriousness of the crime is one of the factors considered when disposition is made. There can be no doubt as to the relevance of the penalty authorized in considering whether the trial is subject to the mandates of the Sixth Amendment. (Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 20 L.Ed.2d 491).

It has been argued that the New York Constitution is narrower than the United States Constitution in that it limits trial by jury to those cases in which it...