People v. Lugo
| Decision Date | 25 January 1979 |
| Citation | 98 Misc.2d 115,414 N.Y.S.2d 243 |
| Parties | The PEOPLE of the State of New York v. Danny LUGO, Defendant. |
| Court | New York City Court |
The defendant, a fifteen year old, was arrested on September 22, 1978 and charged with Robbery 2o , P.L. Sec. 160.10, an act for which a fifteen year old may be held criminally responsible. P.L. Secs. 10, 30, as amended Ch. 481, L.1978.
On September 28, 1978 a preliminary hearing was held and at the conclusion thereof this court found that there was reasonable cause to believe that the defendant committed the crime of Robbery 2o while displaying an imitation gun; 1 an armed felony 2.
Immediately thereafter, the defense renewed its motion for removal of the case "in the interests of justice" to the Family Court. The prosecutor stated that the District Attorney would not consent to removal of this armed felony and that, therefore, under CPL § 180.75(4)(b), the court had no authority to remove the case and no discretion to make an inquiry respecting removal.
The defendant makes a two fold argument (1), the failure to provide the defendant with an "in the interests of justice" judicial removal hearing to the Family Court where the defendant is charged with an armed felony denies defendant due process of law and renders CPL § 180.75(4)(b) unconstitutional, and (2), the failure to provide the "in the interests of justice" judicial removal hearing to the defendant deprives the defendant of his right to equal protection of the law in violation of the 14th Amendment of the United States Constitution and Article I, § 11 of the New York State Constitution.
This court in considering the constitutional dimensions of the defendant's motion reserved decision pending submission of memoranda of law by both the defendant and People.
The defendant in support of his position places great emphasis on Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 and its progeny and a New York State Court of Appeals case People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67, 359 N.E.2d 663.
Although the defendant presents a rather persuasive argument, this court, being ever mindful of the strong presumption of constitutionality attaching to a challenged statute, Weems v. United States, 217 U.S. 349, 366, 30 S.Ct. 544, 54 L.Ed. 793, Wasmuth v. Allen, 14 N.Y.2d 391, 252 N.Y.S.2d 65, 200 N.E.2d 756, appeal dismissed, 379 U.S. 11, 85 S.Ct. 86, 13 L.Ed.2d 23, People v. Broadie, 45 A.D.2d 469, 360 N.Y.S.2d 906, affirmed 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 and aware that courts of original jurisdiction do not ordinarily set aside a statute as unconstitutional unless such conclusion is inescapable, Matter of VanBerkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, Matter of Fay, 291 N.Y. 198, 206-207, 52 N.E.2d 97, 98, People v. Crane, 214 N.Y. 154, 173, 108 N.E. 427, 433, affirmed 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 is not altogether convinced beyond a reasonable doubt that the statute in question denies the defendant due process of law and/or deprives him of the equal protection of the law.
In September of 1978 the New York State Legislature in response to the problem of serious juvenile crime enacted a tough crime bill which included provisions that radically altered the manner in which serious or violent juvenile offenders were to be treated by the New York courts. This bill expanded the jurisdiction of the adult criminal court system to encompass certain enumerated felonies committed by 13, 14 and 15 year olds. 3 Sec. 33 of the Statute amended the CPL by adding a new section 180.75 which sets forth the required procedures for treatment in the criminal court of a juvenile offender charged with a felony. 4
CPL § 180.75(4)(a) provides for mandatory removal of a non-armed felony to the Family Court In the interests of justice if the District Attorney requests such removal. Also, the court, sua sponte, or upon motion of the defendant may order such removal, In the interests of justice. (Emphasis supplied). Further, it states unequivocally that where the complaint charges Murder 2o or an armed felony 5 said removal In the interests of justice is not applicable. Emphasis supplied.
CPL § 180.75(4)(b) gives the court discretion to remove an armed felony Only if the District Attorney consents to removal and only if the court after making inquiry finds one of the following factors "(1) mitigating circumstances that bear directly upon the manner in which the crime was committed, (2) where the defendant was not the sole participant in the crime, the defendant's participation was relatively minor although not so minor as to constitute a defense to the prosecution or (3) possible deficiencies in proof of the crime." Emphasis supplied.
The defendant contends that not withstanding the aforementioned statutory language of CPL § 180.75(4)(b), that Kent, supra, constitutionally mandates an "in the interests of justice" judicial removal hearing. That the Supreme Court held in Kent that the determination as to whether a juvenile shall be charged and adjudicated in juvenile court (Family Court) or in the adult system was a "critical stage" in the proceedings which entitled him to the protection of the due process clause under the 14th Amendment of the United States Constitution. 6
This court believes that a brief review of the facts in Kent is warranted to show the material difference between New York's statute and the District of Columbia statute which affected, the juvenile, Kent.
In Kent the District of Columbia statute gave the Juvenile Court Exclusive jurisdiction over a youth accused of a crime, (Emphasis supplied). The statute provided that The Juvenile Court judge had the discretion to waive this exclusive jurisdiction and transfer the case to the District Court, if "after full investigation," the judge determined that the juvenile was not a suitable subject for rehabilitation, (Emphasis supplied.) The Juvenile Court judge in Kent ignoring a request made by the attorney for Kent for a waiver hearing, blithely declared, without holding a hearing or making any findings of fact, that after full investigation he had decided to order Kent held for Trial in the District Court.
Calling the waiver decision "critically important," 7 the Supreme Court ruled that before jurisdiction could be waived there had to be a hearing with effective assistance of counsel and that the waiver order had to be accompanied by a statement of reasons for the decision. 8
Although the defendant is quick to point to the Supreme Court's recognition that the waiver decision was a "critical stage" in the proceedings, he fails to mention the distinguishing and underlying basis for such delineation and characterization. "It is clear beyond dispute that the waiver of jurisdiction is a 'critically important' action determining vitally important Statutory rights of the juvenile . . ." Kent supra, p. 556, 86 S.Ct., p. 1055 emphasis supplied. And, "The net, therefore, is that the petitioner then a boy of 16 was by Statute entitled to certain procedures and benefits as a consequence of his statutory right to the 'exclusive' jurisdiction of the Juvenile Court . . ." Kent, supra, p. 557, 86 S.Ct., p. 1055 emphasis supplied.
It was only because the statute had given Kent this statutory right to be treated as a juvenile that some kind of hearing was held to be necessary before that "entitlement" could be taken away. Moreover, and unlike the District of Columbia statute, New York's statute places original and exclusive jurisdiction over the defendant, Lugo, in the criminal court. Thus, he possesses no statutory right to treatment as a juvenile.
Another distinguishing factor is that in Kent the determination of original jurisdiction was a judicial one rather than, as in this case, a legislative one. This court notes with interest that none of the cases cited by the defendant center on the very issue before this court but, instead all focus on the issue of "judicial waiver" from a juvenile court to an adult criminal court. 9 This court is unaware of any decisions either state or Federal that have judicially condemned a legislative body for having limited a particular juvenile court's jurisdiction by excising therefrom certain crimes committed by juveniles and placing those crimes under the original and exclusive jurisdiction of the adult criminal court. To the contrary, see United States v. Bland, 153 U.S.App.D.C. 254, 472 F.2d 1329, cert. denied 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975; Cox v. United States, 473 F.2d 334 (4th Cir.), cert. denied 414 U.S. 869, 94 S.Ct. 183, 38 L.Ed.2d 116; United States v. Alexander, 333 F.Supp. 1213 (D.C.); Woodard v. Wainwright, 556 F.2d 781 (5th Cir.); 10 Broadway v. Beto, 338 F.Supp. 827 (D.C.), affd. 459 F.2d 483 (5th Cir.); cert. denied 409 U.S. 1012, 93 S.Ct. 454, 34 L.Ed.2d 307; United States v. Quinones, 353 F.Supp. 1325, affd. 516 F.2d 1309, 423 U.S. 852, cert. denied 96 S.Ct. 97, 46 L.Ed.2d 76; U. S. ex rel. Walker v. Maroney, 444 F.2d 47, all in effect holding that under their particular statutory scheme as under the New York statute, the placement of exclusive jurisdiction over a special class of juvenile offenders in the adult criminal courts by an "informed" legislature does not warrant a Kent inquiry or make Kent applicable.
In fashioning the newly enacted statute the New York legislature was careful to extend to all juvenile offenders the full panoply of due process rights possessed by other adult criminal defendants. The accused under the challenged stat...
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People v. Putland
...right to bar removal. Indeed, it has been pointed out that there is no constitutional right to juvenile treatment (People v. Lugo, 98 Misc.2d 115, 414 N.Y.S.2d 243; Broadway v. Beto, D.C., 338 F.Supp. 827, affd. 5th Cir., 459 F.2d 483, cert. denied 409 U.S. 1012, 93 S.Ct. 454, 34 L.Ed.2d 30......