People v. Burden
| Decision Date | 06 July 1976 |
| Citation | 53 A.D.2d 867,385 N.Y.S.2d 347 |
| Parties | The PEOPLE, etc., Respondent, v. Dixon Frick BURDEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Herz & Ryder, Jamaica (George Washington Herz, Jamaica, of counsel), for appellant.
Nicholas Ferraro, Dist. Atty., Kew Gardens (David Zucker, Bayside, of counsel), for respondent.
Before HOPKINS, Acting P.J., and LATHAM, COHALAN, HAWKINS and TITONE, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 25, 1975, convicting him of criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence.
Judgment affirmed (see People v. Drayton, 39 N.Y.2d 580, 385 N.Y.S.2d 1, 350 N.E.2d 377 ; People v. Santiago, 51 A.D.2d 1, 379 N.Y.S.2d 843).
With respect to the issues raised by the appellant of lack of due process and unconstitutionality of CPL 720.10 (subd. 2, par. (a)), we point to Montgomery v. Daniels, 38 N.Y.2d 41, 54, 378 N.Y.S.2d 1, 11, 340 N.E.2d 444, 451, where the court, citing, Inter alia, People v. Broadie (37 N.Y.2d 100, 117, 371 N.Y.S.2d 471, 480, 332 N.E.2d 338, 345), stated:
'In approaching this question, the court has recognized that as a matter of substantive law every legislative enactment is deemed to be constitutional until its challengers have satisfied the court to the contrary'.
At bar, the challenger has not successfully borne that burden.
TITONE, J., dissents and votes to reverse the sentence and remit the case to the Criminal Term for further proceedings, with the following memorandum:
This case involves the application of CPL 720.10 (subd. 2, par. (a)), which denies youthful offender treatment to an otherwise eligible youth because he was indicted for a class A felony, to a youth who was acquitted of such charge by a jury of his peers.
On June 22, 1974, defendant was returning from India when a customs inspection at Kennedy International Airport revealed that he was transporting some controlled substances. On August 7, 1974 defendant was indicted and charged with the crimes of criminal possession of a controlled substance (opium) in the second degree, a class A--11 felony (Penal Law, § 220.18 (count 1)), and criminal possession of a controlled substance (marijuana) in the fifth degree, a class C felony (Penal Law, § 220.09, subd. 10 (count 2)). After a jury trial, defendant was acquitted upon the first count of the indictment, but convicted upon the second count.
On November 25, 1975 he was sentenced to five years probation. Mr. Justice GOLDSTEIN determined that, under CPL 720.10 (subd. 2), he did not have the jurisdiction to sentence defendant as a youthful offender, although he characterized defendant's presentence report as 'superb'. Defendant, on appeal, contests the trial court's refusal to grant him youthful offender treatment, contending that the relevant statute is unconstitutional.
CPL 720.10 was recently held to be constitutional by this court in People v. Santiago, 51 A.D.2d 1, 379 N.Y.S.2d 843. That case considered the sentences meted out to three youths who were indicted for class A felonies and who fell within the prohibition of CPL 720.10. Of the three appellants in that case, one had been Convicted of a class A--III felony, and the other two had voluntarily Pleaded guilty to lesser crimes. This case can be distinguished from People v. Santiago (supra) on its facts. The basic distinction lies in the fact that, in the case at bar, defendant was Acquitted of the class A felony charge by a jury. It is this jury verdict of acquittal which operates to invalidate the decision of the trial court.
People v. Santiago (supra) was predicated upon the theory that differences in treatment of criminal offenders do not affect interests of fundamental concern and, thus, are subject merely to a test of rationality. In Santiago (p. 12, 379 N.Y.S.2d 855) we stated that the youthful offender determination was to be made at the time of the indictment because the prior procedure, under which the determination was made at a time subsequent to conviction, 'had proved to be cumbersome and administratively inadequate.' Subsequently, in a recent decision (People v. Drayton, 39 N.Y.2d 580, 385 N.Y.S.2d 1, 350 N.E.2d 377 ), the Court of Appeals referred to 'judicial economy' as the rationale for the distinction based upon the gravity of the crime charged.
This court, in Santiago, further reasoned that (51 A.D.2d pp. 11--12, 379 N.Y.S.2d pp. 854--855):
(emphasis supplied).
The change in the method of classification is invalid in a case such as the one at bar, where the initial charge has been adjudged to be unfounded by a jury of one's peers; I do not quarrel with it in cases where the defendant pleads guilty to a lesser charge.
The right to a trial by jury in criminal cases is 'fundamental to the American scheme of justice'; it is a guarantee of the Bill of Rights which has been extended to the states through the due process clause of the Fourteenth Amendment (Duncan v. Louisiana, 391 U.S. 145, 148--150, 88 S.Ct. 1444, 20 L.Ed.2d 491). The provision for a jury trial was 'clearly intended to protect the accused from oppression by the Government' (Singer v. United States, 380 U.S. 24, 31, 85 S.Ct. 783, 13 L.Ed.2d 630, 788). In particular, a trial by a jury of one's peers was to be a safeguard against 'unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority' (Duncan v. Louisiana, supra, 391 U.S. p. 156, 88 S.Ct. p. 1450) (emphasis supplied).
It has not been unknown for District Attorneys' offices, on occasion, to overindict. In addition,
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People v. Rubin S.
...of an Indictment for an 'A' felony. In view of the expressions of that learned court in Santiago, and other cases (see People v. Burden, 53 A.D.2d 867, 385 N.Y.S.2d 347), it would be presumptuous for this court to assert a contrary view, and, indeed none will be advanced in this decision. W......
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