People v. Darry P.

• Decision Date: 16 August 1978
• Citation: 96 Misc.2d 12,408 N.Y.S.2d 880
• Parties: The PEOPLE of the State of New York v. DARRY P., Defendant.
• Court: New York City Court

Page 880

408 N.Y.S.2d 880

96 Misc.2d 12

The PEOPLE of the State of New York v. DARRY P., Defendant.

Criminal Court of the City of New York, Kings County.

Aug. 16, 1978.

Eugene Gold, Dist. Atty. by Jesse Blair, Jr., Flushing, for the people.

Leon Polsky, Legal Aid Society, New York City by Paul D. Carpenter, Brooklyn, for defendant.

Decision and Order

STANLEY GARTENSTEIN, Judge.

The court is here presented with a constitutional challenge to Criminal Procedure Law § 340.40(7) which denies trial by jury to a youth who is eligible for mandatory youthful offender treatment at the same time this right is available to any other defendant, a discretionary youthful offender included, who is charged with the same crime.

This issue with which we are squarely presented has been raised in some form at almost every stage of the evolutionary process wherein this state has created in gradual phases the byzantine patchwork of statutes differentiating treatment of persons accused of crimes by virtue of age. Because the State of New York has never faced up to its responsibility of enacting a comprehensive scheme delineating separate handling of offenders because of age, the court finds itself in the same position as law enforcement officers, prosecutors, defense counsel and citizens at large all of whom are staggered by the confusion they face in comprehending these laws. We thus find ourselves in the unenviable position of being compelled to strike down a constitutionally offensive statute which is but an infinitesimal part of this maze. We do so fully aware that the impact of this action will be virtually nil on the amorphous web which now passes for this state's lip service to the noble ideals of rehabilitating human beings under a disability because of age and lack of discretion.

THE FACTS :

Defendant Darry P., age 16, is charged with petit larceny (Penal Law § 155.25) and criminal possession of stolen property (Penal Law § 165.40) both arising out of an alleged pocket-book snatch on May 1, 1978. He was arraigned the next day and held in bail pending a hearing which was held on May 18, 1978. Both charges are class A misdemeanors carrying a maximum penalty for non-youthful offenders of one year's incarceration. Inasmuch as this 16 year old defendant has never been convicted of a crime or found to be a youthful offender, he is eligible for mandatory adjudication as a youthful offender carrying a maximum penalty of six months incarceration. In this instance, because he must be accorded this mandatory adjudication, the statute requires a single judge trial without a jury. Had the defendant already once been adjudicated a youthful offender thus placing his being treated as such on this occasion within the court's discretion, he would be entitled to trial by jury.

Defendant now challenges the constitutionality of the statute depriving him of a jury trial. In being presented with this issue, the court has caused notice to be served upon the Attorney General of the State of New York (CPLR § 1012, Subd. b) who has elected not to appear.

CONSTITUTIONALITY PROVINCE OF TRIAL COURT :

It has been long settled in New York that an enactment of the Legislature is presumed constitutional and will be struck down only when its "unconstitutionality is shown beyond a reasonable doubt". (Defiance Milk Prods. Co. v. Du Mond, 309 N.Y. 537, 541, 132 N.E.2d 829, 830; accord Nettleton Co. v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 625, 264 N.E.2d 118, app. dsmd. sub nom. Reptile Prods. Assn. v. Diamond, 401 U.S. 969, 91 S.Ct. 1201, 28 L.Ed.2d 319.)

The limited power of trial courts to strike down a State statute as unconstitutional has been stated repeatedly. The court, in People v. Estrada, 80 Misc.2d 608, 610, 364 N.Y.S.2d 332, 335, stated: " 'Particularly courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and the invalidity of the act is apparent on its face' (National Psychological Assn. v. University of the State of N.Y., 18 Misc.2d 722, 725, 726, 188 N.Y.S.2d 151, 156, affd. 10 A.D.2d 688, 199 N.Y.S.2d 423, affd. 8 N.Y.2d 197, 203 N.Y.S.2d 821, 168 N.E.2d 649, app. dsmd. 365 U.S. 298, 81 S.Ct. 691, 5 L.Ed.2d 688). Courts of original jurisdiction should not set aside a statute as unconstitutional unless that conclusion is inescapable. (People v. Elkin, 196 Misc. 188, 80 N.Y.S.2d 525; Bolhing v. Corsi, 204 Misc. 778, 127 N.Y.S.2d 591, affd. 306 N.Y. 815, 118 N.E.2d 823.) The tendency is to leave such questions to appellate tribunals (City of New Rochelle v. Ecko Bay Waterfront Corp., 182 Misc. 176, 46 N.Y.S.2d 645, affd. 268 App.Div. 182, 49 N.Y.S.2d 673, affd. 294 N.Y. 678, 60 N.E.2d 838)." (People v. Lofton, 81 Misc.2d 572, 366 N.Y.S.2d 769; Dunbar v. Dunbar, 80 Misc.2d 744, 364 N.Y.S.2d 699.)

As we pointed out in Matter of J.R., 87 Misc.2d 900, 386 N.Y.S.2d 774, it is clear that while trial courts are thus enjoined from reaching for an issue of constitutionality, or from considering it when any other basis exists, that when unavoidably confronted with the issue, they are morally and legally bound to consider it and rule accordingly.

The subject of any court's consideration of constitutionality under circumstances where a "leap" in judicial reasoning is required because authority on which to rest a ruling is not as well defined as one might prefer has been discussed by many legal scholars. Perhaps the most perceptive analysis thereof may be found in Mr. Justice Cardozo's The Nature of the Judicial Process (Yale University Press, 1921) in which he quotes the French Civil Code (p. 135 footnote 53):

"The judge who shall refuse to give judgment under pretext of the silence, of the obscurity, or of the inadequacy of the law, shall be subject to prosecution as guilty of a denial of justice."

Justice Cardozo argues that any declaration of unconstitutionality must of necessity involve a process to which he refers as judicial legislation attributable to the fact that such issues are inevitably found in unchartered waters and involve considerations of social values: "Law never Is ", he states, "but is always about to be" (supra, p. 126).

In his attempt to define his own mental processes as a guide to lawyers and judges to follow him, he states (p. 166):

"As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part of the travail of mind, the pangs of death and the pangs of birth, in which principles that have served their day expire, and new principles are born."

In summarizing, Mr. Justice Cardozo quotes from the writings of two legal philosophers, the first, Mr. Justice Holmes writing in 10 Harvard Law Review 1066 (quoted supra at p. 118):

"I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious."

And the second, Arthur L. Corbin, writing in 29 Yale Law Journal 771 (quoted supra at p. 135):

"It is the function of our courts to keep the doctrines up to date with the mores by continual restatement and by giving them a continually new content. This is judicial legislation, and the judge legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judicial office its highest honor; and no brave and honest judge shirks the duty or fears the peril."

We find ourselves in a position of being morally unable to back away from a declaration of unconstitutionality despite the fact that in proceeding, we go forward with a leap in judicial reasoning rather than a measured pace. We go forward only because a potential deprivation of liberty is at stake without trial by jury. We do so in the spirit of those authorities quoted and with trepidation.

PERSPECTIVE :

New York State has joined every other state in enacting special legislation for young people as called for in Judge Julian W. Mack's brilliant plea for this noble social experiment contained in 23 Harvard Law Review 104. In doing so, it has assumed a position contrary to that of the vast majority of states which fix the age of criminal responsibility at 18 with accompanying provision for waiver of the juvenile court's jurisdiction to the criminal courts under appropriate circumstances. ^* Indeed, the very first pronouncement by the Supreme Court in this field was not In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, which is now regarded as the groundbreaker, but Kent v. U. S., 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, which dealt with due process requirements in the waiver hearing. In fixing the age of criminal responsibility at 16, New York joined a handful of only 7 states and the Federal government which set the age below 18 and joined it to a hybrid "youthful offender" category. This delineation was neither fish nor fowl; neither court nor prosecutor nor defendant could quite make out what was accomplished other than obscuring the real issue centering around an unwillingness to be fully benevolent up to age 18 on the one hand and a failure of sufficient candor to admit that the so-called benefits of this category were virtually nil on the other. ^** (Confronting Youth Crime, Twentieth Century Fund Task Force, 1978, p. 94). Moreover, even prior to the so-called Juvenile Justice Reform Act of 1976 which lowered the age for so-called "designated felonies" to 14, New York already had the most restrictive law and the lowest age for criminal...