People v. Ruben S.

• Decision Date: 06 March 1975
• Citation: 81 Misc.2d 305,365 N.Y.S.2d 426
• Parties: The PEOPLE of the State of New York v. RUBEN, S., Defendant.
• Court: New York Supreme Court

Page 426

365 N.Y.S.2d 426

81 Misc.2d 305

The PEOPLE of the State of New York v. RUBEN, S., Defendant.

Supreme Court, Criminal Term, Queens County, Part A.

March 6, 1975.

Nicholas Ferraro, Dist. Atty., Kew Gardens, for plaintiff.

Jacob W. Friedman, New York City, for defendant.

LEONARD LEIGH FINZ, Justice.

The defendant, aged 16 at the time of the crime, who has pleaded guilty to criminal sale of a controlled substance as a Class A III felony, now moves this court for the granting of youthful offender treatment. To determine this question, it is necessary to examine the present controlling statutes addressed to the subject.

The present Article 720 of the Criminal Procedure Law states that only an 'eligible youth' (CPL 720.10(2)) may receive a 'youthful offender' sentence (CPL 720.10(4)). An 'eligible yough' means a defendant who is eligible to be a youthful offender who was between the ages of 16 and 19 when the crime was committed. Every youth is so eligible unless he is (a) indicted for a Class A felony, or (b) has previously been convicted of a felony. It is clear that a Class A felony includes a Class A I, II and III felony (Penal Law, § 70.00(3)).

It is equally clear that the strict application of section 720.10 of the Criminal Procedure Law would preclude the granting of youthful offender treatment in this instance. The difficult issue confronting this court, however, is whether subdivision 2 of section 720.10 violates the due process and equal protection clauses of the Federal and State Constitutions in that it denies to an otherwise eligible youth the privilege of youthful offender status if he has been indicted for a Class A III felony.

In the instant case, the defendant was indicted on one count of criminal sale of a controlled substance in that he was charged with having sold a minimal quantity of cocaine to an undercover agent for which the defendant netted a $15 profit. He has had no prior involvements with the law. The sale, which the defendant admits, constitutes a Class A III felony under existing law. It would appear, therefore, that the defendant youth having been indicted for a Class A felony is ineligible to receive youthful offender treatment in the face of section 720.10 of the Criminal Procedure Law.

A brief revisit of the public climate surrounding the evolution of the 1973 narcotics laws demonstrates clearly a strong desire to attack a problem that was endangering the social stability of all citizens throughout the State.

This new narcotics law which looms over the defendant had its genesis in the fact that the communities of this State, indeed of the entire nation, were being inundated by narcotics and other harmful drugs. It appeared that sellers, pushers and dealers were operating almost at will, infecting the youth of this country with the dreadful effects of these poisonous drugs, causing addiction, death and degradation and spreading crime and misery throughout the land.

In 1973, it appearing that Draconian measures would be necessary to prevent this catastrophe from overwhelming society, the Governor of the State of New York in his message to the Legislature stated, in effect, that despite the expenditure of over a billion dollars 'We have achieved very little permanent rehabilitation--and have found no cure. * * * Addictioin has kept on growing * * * We face the risk of undermining our will as a people--and the ultimate destruction of our society as a whole. This has to stop.' (McKinney's Session Laws of N.Y., 1973, Messages of the Governor, p. 2318.) After thus recognizing the apparent failure of all previous programs, the Governor then went on to propose a series of laws so severe as to deter even the most hardened and professional criminals from trafficking in drugs:

'(1) Life prison sentences for all pushers * * *.

(2) Life sentence for violent crimes by addicts * * *.

(3) Removal of Youthful Offender Protection * * *.'

The Legislature, despite the warnings of some that these laws would work injustice in many cases, or even be self-defeating, dutifully passed this highly repressive legislation and thus effectively denied the court any real discretion except with regard to the length of the jail sentence, but jail, with a minimum of at least one year and a maximum of life, they ruled there must be. Having eliminated, by making the sale or possession of all controlled substances Class A felonies, any consideration of youthful offender treatment and having abolished the reformatories, the law, as passed by the Legislature, destroyed the option which might have provided some possibility for rehabilitation for young people who, perhaps because of their very youth, would be unable to comprehend the gravity of their transgression. It was thus, perhaps through overreaction on the part of the Governor and the Legislature, that all narcotic offenders were thrust into this Procrustean bed, the old and the young, the large and the small.

We return again to the applicable provisions of the Youthful Offender Statute.

Section 720.10 of the Criminal Procedure Law provides for youthful offender treatment for all persons between the ages of sixteen and nineteen 'charged with a crime'. (Subd. 1.) 'Every youth is so eligible unless he (a) is indicted for a class A felony, or (b) has previously been convicted of a felony.' (Subd. 2.) The Practice Commentary by Richard G. Denzer in McKinney's Criminal Procedure Law, volume 11A, page 314, offers a review of the procedure previously employed (Code of Criminal Procedure) in behalf of youthful offenders, indicating that 'Youthful offender process could take root as soon as the basic accusatory instrument was filed'. The Commentary then describes the various steps taken procedurally under the Code to effectuate youthful offender treatment. The significance of this is that all the procedures inaugurated in such case occurred in the Indictment or pre-conviction posture.

Denzer's Commentary then skips over the original version of the Youthful Offender Article (Art. 720) as it appeared in the 1970 version of the Criminal Procedure Law as being not materially different from that contained in the Code and therefore did not require discussion since it, 'never becoming operative, yielded to the 1971 revision which drastically restructured the entire process'.

'The salient feature of the final or 1971 version is a conceptual innovation which transfers the determination to grant or refuse youthful offender treatment From a point near the commencement of the criminal action and before entry of a plea, to a point virtually at the end of the action, namely, after conviction for the crime and immediately before sentence (§ 720.20). No step in the youthful offender process is taken until conviction (either by verdict or plea). The court then orders a pre-sentence investigation (id., subd. 1), which, generally speaking, is part of the criminal process in any event. On a subsequent date, immediately prior to pronouncing sentence, the court declares its finding upon the youthful offender issue.' (P. 316; emphasis added.)

When the Legislature passed the provisions of the new narcotics laws, no change was made in the youthful offender statutes, although a number of attempts were made to amend the statute (CPL 720.10) by substituting the word 'convicted' for 'indicted'. All such attempts were defeated in the Legislature. (See People v. Brian R., 78 Misc.2d 616, 356 N.Y.S.2d 1006.)

The history of the youthful offender law indicates that that statute was not originally intended to deal with drug-related crimes and is now inflexible in connection with what might be considered a minor crime. The prior law (CCP 913--e) permitted the court to extend youthful offender treatment to all youths who had not committed a crime which was 'not punishable by death or life imprisonment'. Manifestly, the old law denied the benefits of youthful offender treatment only to those who had committed the most serious crimes (Class A felony). Today's law (effective September 1, 1971) carries this 'A' felony scheme into the present statute. It is obvious that our present law never anticipated that a score of Class A felonies would be enacted dealing with drugs and that many of these drug crimes would be relatively minor in nature. The constitutional issue upon which this determination rests was addressed in People v. Brian R. (supra).

In Brian R., a New York County, First Department case, the facts were very similar to the ones posed here. There, the learned court perceived the contradiction created by the fact that the ultimate sentence in a narcotics case where the perpetrator was one who would otherwise be a youthful offender, was controlled not by the ultimate Conviction but by the Accusation rendered in the indictment. Stated conversely, as the court did in that case, the defendant was immediately deprived of youthful offender treatment upon indictment, even though he might later be convicted of a lesser included crime. The court found this procedure to be violative of the Constitutions, both of the State of New York and of the United States, as depriving the defendant of his right to due process and the equal protection of the law.

'Under the due process challenge, the restriction must fall because it gives conclusive weight to the untested allegations of the indictment. By tying the availability of Youthful Offender treatment to the indictment, without regard to whether the Class A felony charge is sustained by a verdict is to give constitutionally impermissible significance to the ex parte grand jury accusation. Although an indictment and the grade of offense charged can give rise to ancillary consequences, some of which are described above, the added burdens imposed by the untested accusation must be most circumscribed and related to the purpose and function of the accusatory instrument. In no event, however, may the indictment survive or exist independently...