People v. R.

• Decision Date: 26 June 1974
• Citation: 356 N.Y.S.2d 1006,78 Misc.2d 616
• Parties: The PEOPLE of the State of New York v. Brian, R., Defendant.
• Court: New York Supreme Court

Page 1006

356 N.Y.S.2d 1006

78 Misc.2d 616

The PEOPLE of the State of New York v. Brian, R., Defendant.

Supreme Court, New York County, Part 49.

June 26, 1974.

Frank J. Rogers, Sp. Narcotics Prosecutor by Peter Wilson and David Crook, Asst. Dist. Attys., for the People.

William Gallagher by Ivar Goldart, New York City (Steven Lloyd Barrett, New York City, on the brief), for defendant.

LEON B. POLSKY, Justice:

This case brings into question the validity of section 720.10, subd. 2(a) of the Criminal Procedure Law, a provision which precludes the availability of Youthful Offender treatment to otherwise eligible youths who have been indicted for class A felonies.

Although counsel have raised several broad-gauged issues relating to the constitutionality of the restriction, both facially and in its application, I will deal only with the narrow issue of whether it is constitutionally permissible to use the grade of offense charged in the accusatory instrument--as opposed to the grade of offense for which the defendant is actually convicted--as the basis for determining the availability of Youthful Offender treatment.

As a preliminary matter, inquiry must first be directed to the meaning of the challenged section with a view to finding any reasonable construction or interpretation of the statutory language which would avoid the constitutional challenge.

Section 720.10, subd. 1 of the Criminal Procedure Law defines 'Youth' as a person between the ages of sixteen and nineteen at the time of the alleged commission of the crime. Subdivision 2 of section 720.10 defines 'Eligible youth' as a youth who is eligible to be found a Youthful Offender and 'Every youth is so eligible unless he (a) is indicted for a class A felony, or (b) has previously been convicted of a felony.' It is clear that subdivision 2(a) means what it says and says what it means. The word 'indicted' is a term of art, defined in CPL §§ 1.20, subd. 3 and 200.10. There is no way that the court can construe the work 'indicted' to mean 'convicted' without doing violence to the unequivocal and unambiguous expression of the Legislature. Where the Legislature wanted the 'conviction' to control the availability of special treatment for young persons it said so. See, Penal Law § 75.00, subd. 3(a), which precludes the availability of 'Young Adult' treatment 'where the conviction is of a class A felony.'*

The question raised persists: May the Legislature refuse to permit Youthful Offender treatment to an otherwise eligible youth merely because he had been accused by indictment of a class A felony--without regard to the grade of offense of which the youth is ultimately found guilty?

An understanding of the function of an indictment in the prosecution of a criminal case is critical to the disposition of this case.

Under New York law, an indictment is a written accusation by the grand jury charging the defendant with at least one felony and serves as the jurisdictional basis for a prosecution in a superior court (CPL §§ 1.20, subd. 3; 200.10; 210.05). Its common law and constitutional function is to identify the charge so that the defendant may have notice of the nature and character of the offense in order to prepare his defense, and, it also serves to identify the offense for double jeopardy purposes. People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890 (1930); People v. Farson, 244 N.Y. 13, 155 N.E. 724 (1927); IV Commentaries ^* 302.

Under the challenged section, the indictment does the additional service of restricting the availability of Youthful Offender treatment. Unquestionably an indictment--or any accusatory instrument--can give rise to ancillary consequences beyond the formal notification and delineation of the charges. Also, the grade of offense charged may affect the ancillary consequences. Thus for example, a jury trial may be available for a higher grade of offense but not for a lower offense (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh. den., 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968)); a greater number of peremptory challenges may be allowed for the higher grade (CPL § 270.25, subd. 2); more time may be allowed the prosecution to move the case for trial in cases involving a more serious accusation (CPL § 30.30, subd. 3(a)), etc.

In all such instances, however, the effect of the differences in treatment between different grades of offenses charged terminates before or at the time of the adjudication of guilt. Apart from the challenged provision, there is no instance in New York law where the charges contained in the accusatory instrument survive independently after their adjudication.

Another facet of New York law relating to indictments is of special significance to the issues presented here. Every count of an indictment includes every lesser included offense (CPL § 1.20, subd. 37), and if after trial there is a reasonable view of the evidence which would permit the jury to find the defendant committed the lesser offense but not the greater, then the court must submit the lesser offense to the jury even though not specifically charged in the indictment (CPL §§ 300.30, subd. 1; 300.50, subd. 2). See also, People v. Malave, 21 N.Y.2d 26, 286 N.Y.S.2d 245, 233 N.E.2d 269 (1967); People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551 (1955). The inclusion of lesser included offenses within a count of an indictment charging a higher grade of offense is highlighted by the statutory provisions dealing with motions to dismiss the indictment for insufficiency of...