People v. Putland

• Decision Date: 28 December 1979
• Citation: 102 Misc.2d 517,423 N.Y.S.2d 999
• Parties: The PEOPLE of the State of New York, Plaintiff, v. David G. PUTLAND, Defendant.
• Court: New York County Court

Page 999

423 N.Y.S.2d 999

102 Misc.2d 517

The PEOPLE of the State of New York, Plaintiff, v. David G. PUTLAND, Defendant.

County Court, Dutchess County.

Dec. 28, 1979.

John R. King, Dutchess County Dist. Atty. (Bridget R. Rahilly, Asst. Dist. Atty., of counsel), for plaintiff.

Noel Tepper, Poughkeepsie, for defendant.

ALBERT M. ROSENBLATT, Judge.

At issue is the constitutionality of certain provisions of the newly amended Juvenile Offender Law (L.1979, ch. 411, CPL Sec. 180.75, 210.43) as measured against defendant's contention that the statutes are violative of the doctrine of separation of powers.

The defendant, who at the time of the alleged crimes was twenty-one days short of his 16th birthday, stands indicted, as a juvenile offender, of second degree murder, in violation of Penal Law Section 125.25(1) and first degree sodomy, in violation of Penal Law Section 130.50. He is accused of forcibly sodomizing and then hanging an eight year old boy, and seeks removal to Family Court, pursuant to CPL 210.43. He is opposed by the district attorney, who relies on CPL Section 210.43(1) (b), as furnishing him with the statutory basis to block removal by simply withholding consent.

THE SEPARATION OF POWERS

The defendant claims that a constitutional infirmity inheres in a statute by which the district attorney may exercise what amounts to a veto power over removal. He asserts that a removal decision is, or should be, a judicial determination exclusively, and that the statute is unconstitutional if it be construed as granting the prosecution an unimpeachable right to bar the door to the Family Court.

We need not labor long over the statutory intent. The Legislature, without a doubt, intended to, and quite plainly did, vest the district attorney with the power to grant or withhold removal consent, when certain highly serious designated crimes are charged.

The statute reads as follows:

§ 210.43. Motion to remove juvenile offender to family court.

1. After a motion by a juvenile offender, pursuant to subdivision five of section 180.75 of this chapter, or after arraignment of a juvenile offender upon an indictment, The superior court may, on motion of any party or on its own motion :

(a) except as otherwise provided by paragraph (b), order removal of the action to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter, if, after consideration of the factors set forth in subdivision two of this section, the court determines that to do so would be in the interests of justice; or

(b) With the consent of the district attorney, order removal of an action involving an indictment charging a juvenile offender with murder in the second degree as defined in section 125.25 of the penal law; rape in the first degree, as defined in subdivision one of section 130.35 of the penal law; sodomy in the first degree, as defined in subdivision one of section 130.50 of the penal law; or an armed felony as defined in paragraph (a) of subdivision forty-one of section 1.20, to the family court pursuant to the provisions of article seven hundred twenty-five of this chapter if the court finds one or more of the following factors: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; (ii) 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 (iii) possible deficiencies in the proof of the crime, and, after consideration of the factors set forth in subdivision two of this section, the court determined that removal of the action to the family court would be in the interests of justice.

The question, therefore, is whether there is an encroachment on the separation of powers, under a statutory grant enabling the prosecutor to position himself as a barrier to removal, in one of the expressly enumerated crimes.

The separation of executive, legislative, and judicial powers is basic to our state and federal governments (I. J. Story, Commentaries on the Constitution (5th ed.) 395; Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60; O'Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 77 L.Ed. 1356). While the Supreme Court has left to the states the nature and degree of separation (Dreyer v. Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 47 L.Ed. 79) our state, and its courts, have shown a continuing passion for the preservation and protection of the doctrine, as quintessential to our governmental framework (People ex rel. Burby v. Howland, 155 N.Y. 270, 282, 49 N.E. 775, 779; Matter of Davies, 168 N.Y. 89, 101-102, 61 N.E. 118, 121; Matter of La Guardia v. Smith, 288 N.Y. 1, 41 N.E. 2d 153).

Even when under a more "pragmatic, flexible" approach to division (Nixon v. Administrator of General Services, 433 U.S. 425, 442, 97 S.Ct. 2777, 53 L.Ed.2d 867; United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039), the Supreme Court has recognized that a constitutional flaw would exist in any statute which disrupts the proper balance between the coordinate branches. Whether the formulation be one of rigid departmentalization, or the more recent approach in the Nixon cases, supra, and Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, this court holds that CPL 210.43 poses no direct or potential threat to the judicial functions under the statute.

The district attorney is a quasi-judicial officer (People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497, 498) but for purposes of separation falls within the executive branch (United States v. Cox, 5th Cir., 342 F.2d 167, cert. den. sub. nom. Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700; Matter of Hassan v. Magistrates' Ct. of City of N. Y., 20 Misc.2d 509, 191 N.Y.S.2d 238, app. dismd. 10 A.D.2d 908, 202 N.Y.S.2d 1002, mot. for lv. to app. dismd. 8 N.Y.2d 750, 201 N.Y.S.2d 765, 168 N.E.2d 102, cert.

den. 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed.2d 68). The legislature, by requiring the prosecutor's preliminary consent, has not invested him with a judicial function or with a vehicle for trespassing on judicial turf. If and when a prosecutor does consent, the court must itself, in the interests of justice, and under the articulated standards, decide whether removal would be appropriate (cf. People v. Taylor, 76 Ill.2d 289, 29 Ill.Dec. 103, 391 N.E.2d 366).

The judicial decision making thus comes into play, with its neutrality and discretion exercised independent of the district attorney's position. To put it another way, this proceeding, like others, contemplates the existence of a concurring triumvirate: the defense, the prosecution, and the court. In a murder indictment, the concurrence of all three is envisioned as a basis for the removal of what is presumptively a superior court case. By granting the court and the district attorney the authority to concur in or to reject the defendant's proposed removal, the prosecutorial consent is no different from the "veto power" which resides in the prosecution when it chooses to withhold consent to a lesser plea. In both illustrations, the concurrence of each of the three entities furnishes the basis for the result. ¹ When, for example, a defendant wants to plead to a reduced charge, and the court is agreeable, the district attorney's consent is required (CPL 220.10(3), (4)) and there is nothing remarkable or unconstitutional about that. (Matter of MacDonald v. Sobel, 272 App.Div. 455, 72 N.Y.S.2d 4, aff'd. 297 N.Y. 679, 77 N.E.2d 3; Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479) It can no longer be seriously claimed that the district attorney is imposing on judicial power or exercising a judicial function by being consulted for that consent, any more than it can be claimed that a civil plaintiff who wishes to settle a case, may challenge the "veto power" of an opponent who refuses to settle for the amount offered.

Significantly, the power of the district attorney to thwart removal exists only in this most serious class of offenses. In the vast majority of cases, the superior court may, notwithstanding the district attorney's objection, grant a defense motion for removal under CPL 210.43(1)(a). The legislature has, in essence, proclaimed that the state has a right to public, criminal trials for juveniles accused of designated crimes, but has refrained from casting the parties in a jurisdictional strait-jacket. Recognizing that there may be some cases which, owing to circumstances, better belong in Family Court, the Legislature paved an ameliorative path, to be traversed only in "those unusual cases" in which non-criminal treatment is appropriate. (Matter of Vega v. Bell, 47 N.Y.2d 543, 551, 419 N.Y.S.2d 454, 459, 393 N.E.2d 450, 455)

The prosecution, the defense, and the court, comprise the whole of societal interest. The district attorney represents, conceptually, the people of the community and state, except, of course, for the individual accused. Between them, however, the entire state society is spoken for both constitutionally and figuratively, with the court acting as the overseer of rights and obligations. When all members of the troika agree on a dispositional result, no contradictory societal interest remains. Removal to a Family Court may take place, therefore, only when these three interests converge.

The scheme is not irrational. It is well within the power of the legislature to insist on superior court trials in cases such as this, and to provide its prosecutorial arm with the means to carry out that objective. If an appropriate case arises, the state is given the opportunity to relax its right to a superior court trial and may seek to channel the case to Family Court, ² much in the same way that it is given the opportunity, in certain cases, to compromise its right to the trial of an indictment by agreeing to a lesser plea. This prosecutorial act does not amount...