People v. Alouisa
| Decision Date | 08 September 1983 |
| Citation | 120 Misc.2d 968,466 N.Y.S.2d 1007 |
| Parties | The PEOPLE of the State of New York, v. Michael ALOUISA, Defendant. |
| Court | New York County Court |
Patrick Henry, Dist. Atty. by Asst. Dist. Atty., Riverhead, for the people.
Menagh, Trainor & Bochner by Martin M. Trainor, New York City, for defendant.
The defendant, Michael Alouisa, is charged under Indictment Number: 827-83, with one count of Burglary in the third degree and one count of Criminal Mischief in the third degree.
He has moved this Court, pursuant to Section 180.75 of the Criminal Procedure Law, for an order to remove the action to the Family Court, alleging the defendant to be an eligible juvenile. The moving affirmation asserts the following: (a) That the crime is alleged to have occurred on Wednesday, March 16, 1983 at approximately 5:02 am; (b) that the defendant was born on March 16, 1967 at or about 5:35 am, as indicated by an annexed birth certificate; (c) that "since the chronological age of the defendant in County Court must be over the age of 16 years, there is a reasonable doubt that the defendant is under the jurisdiction of this Court."
This Court notes that the defendant's application is defective in that the section of the CPL upon which the motion is made is not applicable to the situation. As stated in Vega v. Bell, 47 N.Y.2d 548, 419 N.Y.S.2d 454, 393 N.E.2d 450;
"... at page 458. See also People v. Nieves, 100 Misc.2d 345, 419 N.Y.S.2d 36, 38.
Scattered throughout the CPL are several provisions whereby, at various stages in a criminal proceeding, a juvenile offender may be removed to the Family Court if it becomes apparent in a particular case that such treatment would be more appropriate then continuation of criminal prosecution (see CPL 180.75, 190.71, 210.43, 210.20, subd. 5, 310.85, 330.25).
In spite of any determination as to the defendant's age, he could not be found to be a "juvenile offender" under the circumstances of this case. A "juvenile offender" is defined in section 1.20(42) of the C.P.L. (as it applies to this defendant) as follows:
" 'Juvenile offender' means ... (2) a person fourteen or fifteen years old who is criminally responsible for acts constituting the crimes defined in ... 140.30 (burglary in the first degree); subdivision one of section 140.25 (); ... of the penal law; ..."
The defendant has not been charged with any of the serious crimes of violence enumerated in the statute to permit prosecution of juveniles within the adult criminal justice system.
Therefore, the crux of the defendant's application is not one of removal but of outright dismissal of the indictment since the Court lacks jurisdiction over the person of the defendant. Assuming the defendant to be a person under the age of sixteen, and since he is not a juvenile offender as per the statute, any action taken in the County Court including the Grand Jury proceeding was null and void. The proper procedure would be a petition filed in the Family Court pursuant to Section 731 of the Family Court Act alleging the defendant to be a Juvenile Delinquent. The position of the People remains one of opposition based on an interpretation of the defendant's age to be sixteen years old and as such he remains in the adult criminal justice system.
This Court will exercise its discretion and treat the defendant's application as one pursuant to C.P.L. section 210.20, (1)(h), a motion to dismiss the indictment where "there exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged." The Court takes this action with the intent of resolving the issue swiftly and with a minimum of motion practice.
Until March 31, 1966, New York followed the common-law rule regarding the computation of age, and under common law, a person was deemed to attain a given age on the day preceding the anniversary of his birth (Snyder v. Warren, 2 Cow. 518, 14 Am.Dec. 519; Phelan v. Douglass, 11 How.Prac. 193; Matter of Bardol, 253 App.Div. 498, 4 N.Y.S.2d 795, affd. 278 N.Y. 543, 16 N.E.2d 96; 1955 Atty Gen. 795; Aultman & Taylor Co. v. Syme, 163 N.Y. 54, 57 N.E. 168; Birdsall v. Lewis, 246 App.Div. 132, 285 N.Y.S. 146, affd. 271 N.Y. 592, 3 N.E.2d 200).
In re Bardol's Will, 164 Misc. 907, 300 N.Y.S. 60, mod. 253 App.Div. 498, 4 N.Y.S.2d 795, affd. 278 N.Y. 543, 16 N.E.2d 96, provides a good example of the common law rule. The testator therein created separate trusts for each of his five sons and provided that each should be paid one-fourth of the principal thereof upon attaining the age of twenty-five years, one-fourth at the age of thirty, one-fourth at the age of thirty-five, and one-fourth at the age of forty. One son, Franklin, was born on November 24th 1911 and died on November 23rd 1936, the day before the anniversary of the day of his birth, leaving no children, but leaving as his distributees his widow and his mother. The surrogate held that Franklin arrived at the age of twenty-five years and that his estate was entitled to the principal of one-fourth of his trust.
Under the common-law rule, the instant defendant would most definitely have been considered an adult, having attained the age of sixteen on March 15, 1983.
However, the common-law rule was negated by the Court of Appeals in 1966 in the case, People v. Stevenson, 23 A.D.2d 472, 262 N.Y.S.2d 238, 17 N.Y.2d 682, 269 N.Y.S.2d 458, 216 N.E.2d 615. In that case a defendant committed a homicide on the day before his sixteenth birthday. Under the common-law rule he was already sixteen years old and therefore he was tried as an adult. The Appellate Division affirmed, with Justice Christ dissenting. The Court of Appeals reversed based upon the dissenting Appellate Division opinion. For a more complete understanding of the principal involved, the opinion is quoted in its entirety.
The majority opinion adheres to a legal fiction which was embraced in order to aid persons whose ages were being determined and to prevent hardship or loss to such persons. I do not perceive the reasons why this legal fiction should be perpetuated in a situation which invites a reasonable departure from the rule. The majority holds that the defendant was 16 years of age on the day before his 16th birthday. The obvious consequence of its holding is--not to aid the defendant--but to deprive him of the advantages of being treated in the Family Court where special rehabilitative procedures are available, and to thrust him as a fully mature and adult criminal before the court of general criminal jurisdiction.
The irony of the rule that places defendant in his difficulty is that it is based on an exception. Time measurements generally count and include the terminal day in the period under consideration (see, e.g., H.E. & S. Transp. Corp. v. Checker Cab Sales Corp., 271 N.Y. 239, 2 N.E.2d 642; General Construction Law, § 20). The legal fiction applied here excludes that day and justifies such computation by counting the actual day of birth (5 ALR 2d 1143). The latter citation points out that the fiction has been criticized.
The most cogent and significant reason for not following the fiction in the present case is the countervailing rule that criminal statutes must be "strictly construed against the party seeking their enforcement and in favor of the person being proceeded against" (People v. O'Neill, 208 Misc. 24, 25, 53 N.Y.S.2d 945; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 271). While the Family Court Act section at issue here ( § 712) is not strictly a penal or criminal statute, it very much affects the jurisdiction and treatment of criminal acts and offenders; in that respect it ought to be construed most favorably toward "the person proceeded against", particularly since the very purpose of the statute was to aid "persons less than sixteen years of age."
I am confident that the common understanding of the said section 712 of the Family Court Act is that it means the birth date itself shall control, not some artificial arrangement resulting in the day before the birth date. I am not able to agree, despite the seriousness of the crime charged, that defendant should be treated as a fully mature adult merely because of the application of a legal fiction.
The Stevenson opinion, while certainly more helpful to the defendant's application than the common law rule, apparently settles the art of age computation so that "the birthdate itself shall control, not some artificial arrangement resulting in the day before the birthdate." (Supra, p. 476, 262 N.Y.S.2d 238). Under the Stevenson decision, the defendant reached his sixteenth birthday on the date of the crime.
The defendant seeks to extend the scope of the Stevenson opinion to include an examination of the birthdate itself as a reasonable departure from the rule. In support he has annexed a birth certificate which indicates birth at 5:35 am. The defendant contends that not until 5:35 am. of...
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