People v. Rogers

• Decision Date: 23 January 1970
• Citation: 308 N.Y.S.2d 568,62 Misc.2d 312
• Parties: The PEOPLE of the State of New York v. Allen ROGERS, Defendant.
• Court: New York Supreme Court

Page 568

308 N.Y.S.2d 568

62 Misc.2d 312

The PEOPLE of the State of New York v. Allen ROGERS, Defendant.

Supreme Court, Trial Term, New York County, Part XXXI.

Jan. 23, 1970.

Frank S. Hogan, Dist. Atty. (Edward Plaza, Staten Island, of counsel), for the People.

Milton Adler (Paul Pickelle, New York City, of counsel), for defendant.

ARNOLD GUY FRAIMAN, Justice.

Defendant, a youth of 18, was indicted by a Grand Jury on counts of Robbery in the First Degree, Robbery in the Second Degree, Grand Larceny in the Third Degree, and Possessing a Weapon, Dangerous Instrument and Appliance, all arising out of an incident alleged to have occurred on October 2, 1969. At the same time the indictment was handed down, the Grand Jury, as authorized by section 913--g of the Code of Criminal Procedure, recommended that the defendant 'be examined and investigated for the purpose of determining whether he is eligible to be adjudged a youthful offender.' Defendant was arraigned before this Court on November 25, 1969, at which time defendant's counsel orally moved for 'a hearing to determine the defendant's eligibility for Youthful Offender treatment.' The Court reserved decision on defendant's motion, and with defendant's consent, ordered a prepleading investigation to assist the Court in determining whether defendant should be afforded Youthful Offender treatment. Thereafter, at the Court's request, the motion for a hearing was submitted in writing. The People have submitted a brief memorandum in opposition.

Treatment as a Youthful Offender is a matter of privilege and not of right, Matter of Saunders v. Lupiano, 30 A.D.2d 803, 292 N.Y.S.2d 44 (1st Dept., 1968) (dissenting opinion of McGivern, J.), and the decision whether to grant or deny such treatment rests in the discretion of the court, E.g., Matter of Tschornyi v. County Court of the County of Tompkins, 283 App.Div. 910, 130 N.Y.S.2d 146 (3d Dept., 1954), People v. Towler, 30 A.D.2d 876, 293 N.Y.S.2d 7 (2d Dept., 1968). Paragraph 3 of section 913--g states as follows:

'3. If the court approves the recommendation of the grand jury or the district attorney, or, if the court on its own motion determines that the defendant should be investigated hereunder and the defendant consents to physical and mental examinations, if deemed necessary, and to investigation and questioning, and to a trial without a jury, should a trial be had, ^* the indictment or information shall be held in abeyance and no further action shall be taken in connection with such indictment or information until such examinations, investigation and questioning are had of the defendant.'

Paragraph 4 of the same section then states, in part:

'4. Upon the termination of such examinations, investigation and questioning, the court shall determine whether such defendant is eligible to be adjudged a youthful offender. * * *'

Normally, in this Court's brief experience, the decision whether to grant or deny Youthful Offender treatment to a defendant is based on the Court's review of such Probation Department and other written reports as are made available to it, together with informal consultation with representatives of the Probation Department and the District Attorney's office. Insofar as this Court has been able to determine, this is the procedure generally followed in this Department.

The hearing questioned by defendant is not required by the Youthful Offender provisions of the Code, the cases upon which defendant relies, or the due process clause of the Fourteenth Amendment. On the contrary, People v. Towler, 30 A.D.2d 876, 293 N.Y.S.2d 7 (2d Dept., 1968), which defendant cites, suggests that although the Court's exercise of discretion in this connection may be reviewed on an appeal from a judgment of conviction, such review does not require that a hearing be held by the trial court. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), upon which defendant relies most heavily for constitutional support, is inapposite. In that case, the Supreme Court ruled that a juvenile was entitled to a hearing, before the Juvenile Court of the District of Columbia 'waived' jurisdiction over him so that he could be tried as an adult in a criminal court. However, in that case--as distinguished from the present one--the juvenile had a 'statutory right to the 'exclusive' jurisdiction of the Juvenile Court,' 383 U.S. at 557, 86 S.Ct. at 1055, so that the waiver of jurisdiction served to divest him of that statutory right. Here, as indicated, defendant has no such 'right' to be treated as a Youthful Offender. See also Matter of Briguglio v. New York State Board of Parole, 24 N.Y.2d 21, 298 N.Y.S.2d 704, 246 N.E.2d 512 (1969), where the New York Court of Appeals unanimously ruled that a prospective parolee has no constitutional right to a 'judicial-type hearing including the right to be represented by counsel, to be presented with a statement of the charges against him, to confront and cross-examine witnesses and to present evidence in his behalf'...