People v. Drummond

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: PER CURIAM; BREITEL
• Citation: People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67 (N.Y. 1976)
• Decision Date: 16 December 1976
• Parties: , 359 N.E.2d 663 The PEOPLE of the State of New York, Respondent, v. Norma Jean DRUMMOND, Appellant. The PEOPLE of the State of New York, Respondent, v. LUIS J., Appellant. The PEOPLE of the State of New York, Respondent, v. CARLOS S., Appellant. The PEOPLE of the State of New York, Respondent, v. BARRY A., Appellant, Louis J. Lefkowitz, Attorney-General, Intervenor-Respondent.

Page 67

391 N.Y.S.2d 67

40 N.Y.2d 990, 359 N.E.2d 663

The PEOPLE of the State of New York, Respondent, v. Norma Jean DRUMMOND, Appellant.

The PEOPLE of the State of New York, Respondent, v. LUIS J., Appellant.

The PEOPLE of the State of New York, Respondent, v. CARLOS S., Appellant.

The PEOPLE of the State of New York, Respondent, v. BARRY A., Appellant, Louis J. Lefkowitz, Attorney-General, Intervenor-Respondent.

Court of Appeals of New York.

Dec. 16, 1976.

Anna M. Perry, Northport, John F. Middlemiss, Jr., Riverhead, and Leon J. Kesner, Bay Shore, for Norma Jean Drummond, appellant.

Stephen Lloyd Barrett and William E. Hellerstein, New York City, for Luis J., appellant.

Samuel Boxer, White Plains, for Carlos S., appellant.

Henry J. Boitel, New York City, for Barry A., appellant.

Henry F. O'Brien, Dist. Atty., Suffolk County (Ronald E. Lipetz, Hauppauge, of counsel), for respondent in the first above-entitled action.

Eugene Gold, Dist. Atty., Kings County (Robert Dublirer, Piermont, of counsel), for respondent in the second above-entitled action.

Carl A. Vergari, Dist. Atty., Westchester County (B. Anthony Morosco, White Plains, of counsel), for respondent in the third above-entitled action.

Henry F. O'Brien, Dist. Atty., Suffolk County (Denis R. Hurley, Riverhead, of counsel), for respondent in the fourth above-entitled action.

Louis J. Lefkowitz, Atty. Gen. (Jules E. Orenstein and Samuel A. Hirshowitz, New York City, of counsel), intervenor-respondent.

PER CURIAM.

Orders reversed in the Luis J., Carlos S., and Barry A. actions, and the several proceedings remitted to the respective sentencing courts for consideration of defendants as youthful offenders and such resentencing as the court may in its discretion impose in accordance with CPL 720.20. The order in the Drummond action is affirmed.

For the applicable reasons stated in the dissenting opinion of Mr. Justice Samuel Rabin at the Appellate Division the limitations in CPL 720.10 conditioning eligibility for youthful offender treatment on the highest count of the indictment violate due process of law, and to that extent are declared unconstitutional (see, also, People v. Goodwin, 49 A.D.2d 53, 55--58, 378 N.Y.S.2d 82, 84--87 (Greenblott, J., dissenting), concluding that the statute is unconstitutional but on an equal protection analysis; People v. R., 78 Misc.2d 616, 356 N.Y.S.2d 1006 (Polsky, J.), affd, 47 A.D.2d 599, 365 N.Y.S.2d 998). Such limitations make the privileged penal sanction to be imposed depend solely upon an accusation, however formal, rather than an adjudication, however informal, in the adversarial criminal process. Thus viewed, the issue involves due process of law rather than an equal protection analysis which so often raises nebulous problems (see People v. S., 79 Misc.2d 1058, 1059--1060, 361 N.Y.S.2d 848, 849--850 (Polsky, J.); People v. R., supra). A plea of guilty in this context involves no waiver because the illegality subject to appellate review affects the sentence to be imposed. By traditional analysis the illegality of a sentence imposed is generally subject to review. Insofar as the presentence proceedings are concerned the initial steps taken und CPL 720.10 are only to determine eligibility for treatment as a youthful offender. The...