People v. Robert Z.

• Decision Date: 19 December 1986
• Citation: 134 Misc.2d 555,511 N.Y.S.2d 473
• Parties: PEOPLE of the State of New York v. ROBERT Z.
• Court: New York County Court

Page 473

511 N.Y.S.2d 473

134 Misc.2d 555

PEOPLE of the State of New York v. ROBERT Z.

County Court, Nassau County.

Dec. 19, 1986.

Denis Dillon, Dist. Atty., Mineola, Charles A. Singer, Sp. Dist. Atty., Weber & Singer, Melville, for the people.

Ronald J. Bekoff, Hession, Halpern, Bekoff & Sawyer, Mineola, for defendant.

BELFI, Judge.

The defendant has moved for an order granting him a separate trial from his codefendants William Salvatto and Damon Hewlette. (The charges against a third codefendant have been dismissed.)

The defendant, age 18 at the time of the alleged criminal incident and an eligible youthful offender (CPL 720.10[2] ), has been indicted for the crime of assault in the third degree (PL 120.00), a class A misdemeanor. He contends that, under these circumstances, he is, or should be, entitled to mandatory youthful offender treatment pursuant to CPL 720.20(1)(b). He asserts that he should thus be granted a single judge, non-public trial apart from his "adult" codefendants. (CPL 340.40[7]; CPL 720.15[2].) The defendant further argues that he is named only in Count 2 of the indictment, charged with causing "physical injury" to the complainant. (PL 10.00[9].) Count one of the indictment charges Damon Hewlette, with causing serious physical injury to the complainant in the course of a post-party melee. (PL 120.05, Assault, Second Degree, PL 10.00[10].) The defendant contends that the presentation to a jury of the bizarre circumstances bearing on count one will irrevocably prejudice, by "transferance of guilt," its assessment of his "minimal involvement, if any" in the fracas and, "... in effect, deny him a fair trial." "Charge premises upon disparate levels of and varying allegations of culpability, foreshadow confusion of evidence and prejudice to the Defendant." (Affirmation of Ronald J. Bekoff, Esq. dated June 6, 1986, par. 30.) Therefore, pursuant to the discretionary provisions of CPL 200.40(1), the defendant requests he be granted a separate trial.

The Special District Attorney responds by asserting first, that the defendant is not a person entitled to mandatory youth offender status because he is before a superior court under indictment, albeit charged only with a misdemeanor. (CPL 720.20[1][b].) He further asserts that the People have three interlocking confessions and that contrary to the defendant's contention,

"... the facts surrounding defendants' assault upon Mr. Leahy [the complainant] and their conduct in aiding and abetting each other in the commission of such assault, including their respective roles in fending off those seeking to assist Mr. Leahy, require that this matter be tried in one trial, before one jury ... A 'joint trial' would not, as alleged by Mr. Z___, result in prejudice to him. Indeed, a severance would rather, make the presentation of this action to a jury disjointed and make confusion more likely." (Affirmation in Opposition of Special District Attorney Charles A. Singer, dated July 16, 1986, par 22, pp 14-15.)

The defendant's first ground for seeking a trial severance raises a very troublesome issue. It essentially calls into question the constitutionality of the New York Youthful Offender statutes as applied to an eligible youth, under indictment in a superior court and charged only with the alleged commission of a misdemeanor.

Criminal Procedure Law section 720.20 provides:

"1. Upon conviction of an eligible youth, the court must order a pre-sentence investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender. Such determination shall be in accordance with the following criteria:

(a) If in the opinion of the court the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years, the court may, in its discretion, find the eligible youth is a youthful offender; and (b) Where the conviction is had in a local criminal court and the eligible youth had not prior to commencement of trial or entry of a plea of guilty been convicted of a crime or found a youthful offender, the court must find he is a youthful offender." (Emphasis supplied.)

The statute makes youthful offender treatment mandatory where a youth (CPL 720.10[1] ), who has never before been convicted of a crime (PL 10.00[6] ) or been the subject of a youthful offender adjudication (CPL 720.10[3] ), is convicted of an offense in a local criminal court (CPL 10.10[3].) (Compare CPL 720.10[2] and [3] with CPL 720.20[1][b].) For all other eligible youths, a youthful offender finding is discretionary. (CPL 720.20[1][a].) The defendant here apparently meets all of the criteria set forth in CPL 720.20(1)(b) for mandatory youthful offender treatment, save one. Though charged only with a misdemeanor, his case is presently pending in a superior court rather than before a local criminal court, only because the prosecution is proceeding by way of indictment rather than by information. (CPL 1.20[3] and [4]; CPL 1.20[24].) The defendant sees this as a denial of his constitutionally guaranteed right to equal protection of the law. (U.S.C.A. Const. Amend. 14; McKinney's Const. Art. I, sect. 11.)

An equal protection challenge to New York's Youthful Offender statutes is not new. Most notable for present purposes, the statutes were able to withstand a constitutional attack from an otherwise eligible youth, charged by indictment with a felony, who subsequently entered a bargained for plea of guilty to a misdemeanor and then claimed entitlement to mandatory youthful offender treatment. (People v. Drayton, 47 A.D.2d 952, 367 N.Y.S.2d 506, affd. 39 N.Y.2d 580, 385 N.Y.S.2d 1, 350 N.E.2d 377, revd. sub nom Drayton v. People of the State of New York, et al., 423 F.Supp. 786, revd. 556 F.2d 644, 2nd Cir., cert. den. 434 U.S. 958, 98 S.Ct. 488, 54 L.Ed.2d 317.) That case explicitly did not treat the issue raised here. (See People v. Drayton, 39 N.Y.2d 580, 586, 385 N.Y.S.2d 1, 350 N.E.2d 317 [supra ]; Drayton v. People et al., 423 F.Supp. 786, 788 [supra ], fn. 2 and 556 F.2d 644, 647 [supra ] fn. 1.) However, the discussions contained in the several published decisions clearly establish the constitutional framework within which the present case must be analyzed.

There is no constitutional right to youthful offender treatment. Such treatment is entirely "a gratuitous creature of the Legislature, subject to such conditions as the Legislature may impose without violating constitutional guarantees." (Emphasis supplied.) (People v. Drayton, 39 N.Y.2d 580, 584, 385 N.Y.S.2d 1, 350 N.E.2d 317 [supra ]. See also, McKinney's Const., Constitutional Interpretation, Sect. 41.) Therefore, the legislative classification contained in CPL 720.20(1) is "cloaked with a presumption of validity which may be overcome only 'if no grounds can be conceived to justify [it]'." (People v. Drayton, supra p. 584, 385 N.Y.S.2d 1, 350 N.E.2d 317, citing McDonald v. Board of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739. See also, United States v. Bland, 472 F.2d 1329, 1333-1334, cert. den. 412 U.S. 909, 93 S.Ct. 2294, 36 L.Ed.2d 975.) Furthermore, since the challenged classification does not involve either "suspect classifications" or "fundamental rights" (Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506), the application of a "rational basis test," not one of strict scrutiny, is appropriate. (People v. Drayton, supra, 39 N.Y.S.2d at pp. 584-585, 385 N.Y.S.2d 1, 350 N.E.2d 317, and the cases cited therein. See also Drayton v. People et al., 423 F.Supp. 786, 787-788 [supra ] and revd. 556 F.2d 644, 645 [supra ]; People v. Whidden, 51 N.Y.2d 457, 460, 434 N.Y.S.2d 937, 415 N.E.2d 927. ¹ ) Our Court of Appeals has stated that "... this test requires that a governmental classification be based upon some conceivable and valid state interest (McGinnis v Royster, 410 US 263, 276-277 [93 S.Ct. 1055, 1062-1063, 35 L.Ed.2d 282]. [Other citations omitted.].) ... '[A] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it ' (McGowan v Maryland, 366 US 420, 426 [81 S.Ct. 1101, 1105, 6 L.Ed.2d 393].)" (Emphasis supplied.) (People v. Drayton, 39 N.Y.2d 580, 585, 385 N.Y.S.2d 1, 350 N.E.2d 377 [supra ].)

The federal district court (Neaher, J.) preferred the formulation of the test set forth in Walters v. City of St. Louis, 347 U.S. 231, 237, 74 S.Ct. 505, 509, 98 L.Ed. 660:

"Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, relative to the difference in classification, as to be wholly arbitrary." (Emphasis supplied.) (Drayton v. People et al., 423 F.Supp. 786, 789 [supra ]. See also, Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620.)

The second circuit Court of Appeals preferred to call it "the rational relationship test," citing McGinnis v. Royster, supra, but did not choose to set forth its preferred formulation. (Drayton v. People et al., 556 F.2d 644, 645 [supra].) ²

Applying their version of the "rational basis" test, the Court of Appeals found the distinction drawn by CPL 720.20(1) not to be arbitrary. The Court held that the classification in the statute was based upon the gravity of the crime charged and that,

"... there is a rational basis for distinguishing between a youth accused of a felony and one charged with a misdemeanor." (Emphasis supplied.) (People v. Drayton, 39 N.Y.2d 580, 585, 385 N.Y.S.2d 1, 350 N.E.2d 377 [supra ].)

The Court continued,

"There is no invidious...