People v. Cuda
| Decision Date | 25 May 1972 |
| Parties | PEOPLE of the State of New York, Respondent, v. Fidele CUDA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ronald Yorio, Painted Post, for appellant.
John M. Finnerty, Bath, for respondent.
Before DEL VECCHIO, J.P., and WITMER, MOULE, CARDAMONE and HENRY, JJ.
By information dated March 12, 1971 defendant was charged in Steuben County Court with being a wayward minor in violation of Code of Criminal Procedure, section 913--a. That section provides in part,
Section 913--b provides in part that,
'Such person * * * may be so adjudged by any magistrate where an information is laid before him on the complaint of a peace officer, parent * * *.'
A person adjudged to be a wayward minor may be punished under section 913--c of said law by being placed on probation up to two years or committed for an indeterminate term to a reformatory institution not to exceed 3 years.
Upon the hearing in Steuben County Court defendant's attorney moved for dismissal of the information upon several grounds, including (a) that the language of section 913--a, 'morally depraved or is in danger of becoming morally depraved', is too vague and ambiguous to be constitutionally valid, and (b) that the provision of section 913--b authorizing trial by magistrate without a jury is unconstitutional since the punishment under section 913--c may exceed 6 months' imprisonment.
The court denied the motions to dismiss the information, and after a hearing it found defendant guilty of being a wayward minor and placed him on probation for two years. Within one month thereafter defendant was charged with violation of his probation, was found guilty thereof, his probation was revoked and on May 4, 1971 he was sentenced to a reformatory term under the jurisdiction of the State Department of Correction. He appeals from that judgment. With commendable candor the District Attorney joins in the defendant's prayer for reversal of the judgment and dismissal of the information.
We note at the outset that the sections of the Code of Criminal Procedure involved in this appeal were omitted from the new Criminal Procedure Law which became effective September 1, 1971, and that these sections ceased to be law on August 31, 1971. Nevertheless since this charge arose in March, 1971, the validity of sections 913--a through 913--c of the Code of Criminal Procedure as applied to this defendant must be determined.
Since the statute provided for punishment in excess of six months, it was unconstitutional for failure to afford defendant a jury trial (Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491). For this reason the judgment should be reversed. Were it not for the remaining question of the constitutionality of section 913--a, we would remit for a new trial (see People v. A.C., 27 N.Y.2d 79, 313 N.Y.S.2d 695, 261 N.E.2d 620).
The arguement that the language in section 913--a, 'morally depraved or is in danger of becoming morally depraved', is unconstitutionally vague and ambiguous has been considered by our Court of Appeals and rejected without opinion in People v. Martinez, 23 N.Y.2d 780, 782, 297 N.Y.S.2d 144, 145, 244 N.E.2d 711, 712 and People v. Salisbury, 18 N.Y.2d 899, 276 N.Y.S.2d 634, 223 N.E.2d 43. In People v. E. (Anonymous), 26 N.Y.2d 622, 307 N.Y.S.2d 465, 255 N.E.2d 721 and in three companion cases in People v. martinez, supra, the Court of Appeals dismissed the complaint upon the ground that it was not established that defendant was a...
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