People v. Woodman

• Decision Date: 24 April 1978
• Citation: 405 N.Y.S.2d 183,94 Misc.2d 266
• Parties: The PEOPLE of the State of New York v. Victor WOODMAN, Defendant.
• Court: New York Supreme Court

Page 183

405 N.Y.S.2d 183

94 Misc.2d 266

The PEOPLE of the State of New York v. Victor WOODMAN, Defendant.

Supreme Court, Trial Term,Bronx County, Part 203.

April 24, 1978.

Mario Merola, Dist. Atty. (Stephen Bookin, New York City, of counsel), for plaintiff.

Seymour Epstein, New York City, for defendant.

JACK ROSENBERG, Justice:

Indictment number 1354/77 charged the defendant with the crimes of Murder in the Second Degree in violation of Penal Law § 125.25 (three counts), Robbery in the First Degree in violation of Penal Law § 160.15, Burglary in the First Degree in violation of Penal Law § 140.30 (two counts), and Criminal Possession of a Weapon in the Fourth Degree in violation of Penal Law § 265.05. All the counts in the indictment arose out of a robbery on July 1, 1977 in the course of which the defendant and two others not yet apprehended shot and killed Wilbur Barber and stole his money. Defendant was taken into custody on July 5, 1977. On January 19, 1978, he pled guilty to manslaughter in the first degree in satisfaction of the entire indictment. On March 2, 1978, the People filed a predicate felony information on the defendant and the defendant requested a hearing thereon. That hearing, pursuant to CPL § 400.21 (subd. 7(b)), was held before me on March 9, 1978. At that hearing the defendant acknowledged that on December 18, 1967 he had been convicted on his plea of guilty to manslaughter in the second degree, a felony, in satisfaction of an indictment for murder in the first degree and was sentenced on February 2, 1968 to a term of imprisonment of from four to five years. The defendant claimed, however, that since he was born on September 4, 1950 (the People conceded that date of birth at the predicate felony hearing), he was sixteen years old when he made his plea and was, therefore, eligible for youthful offender treatment. His then attorney failed to apply for such treatment for him, nor did the sentencing court give any consideration to the fact that he was eligible for such treatment. This failure, defendant contended at the predicate felony hearing, was such inadequate representation by counsel, that it amounted to a denial to him of his constitutional right to counsel, thus rendering the prior felony conviction unconstitutional (People v. Taylor, 86 Misc.2d 445, 382 N.Y.S.2d 688 (1976)).

To determine the validity of that claim the Court must determine, first, whether defendant was eligible for youthful offender treatment at the time of his plea of guilty to manslaughter in the second degree in 1967. The statute then in effect defining eligibility for such treatment was Code of Criminal Procedure ("C.C.P.") § 913-e, which granted eligibility for youthful offender treatment to "a youth who has committed a crime not punishable by death or life imprisonment." (Emphasis supplied). The defendant had been charged in the indictment which led to his plea of guilty to manslaughter second degree, with the commission of murder in the first degree. If he had been found to have committed that crime, which was punishable by death or life imprisonment, he would clearly not have been eligible for youthful offender treatment. But the crime of which he was convicted on his plea of guilty, i. e., found to have committed, was one which would have left him eligible for such treatment. Defendant contends that the attorney representing him in that prior conviction should have applied for youthful offender treatment for him after his conviction and that his failure to do so made his representation of his client so inadequate as to constitute a failure of counsel rendering the conviction unconstitutional.

Hence, the first question before this Court is whether the term " committed" in CCP § 913-e means "convicted" or whether it means simply " charged" or "indicted", the word used in the Criminal Procedure Law ("CPL") § 720.10, which replaced CCP § 913-e. CPL § 720.10 denied eligibility for youthful offender treatment to a youth "indicted for a Class A felony," or previously convicted of a felony. But the ambiguity arising out of the use of the word "committed" in § 913-e as compared with the use of the word "indicted" in its successor provision in the CPL is, in my opinion, resolved by the fact that the procedure under the CCP for determining eligibility for youthful offender treatment, which was set forth in § 913-f permitted the commencement of such a determination at the time of indictment since either the Grand Jury or the District Attorney, or the Court in which the indictment or information was pending, had to "recommend" that the defendant be "investigated" for the purpose of better enabling the court to make the ultimate determination ( § 913-g(1, 2)). As Judge Denzer points out in his commentary on Article 720 of the CPL, which deals with the youthful offender procedure, the salient feature of the final version thereof, the 1971 version, was that it transferred "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)." (McKinney's Criminal Procedure Law, Book 11A, p. 316; see People v. Johnson, 32 A.D.2d 968, 303 N.Y.S.2d 210). This not only negates any finding that "committed" in § 913-e can be read as intended by the Legislature to be equivalent to "convicted", but it also makes clear that defendant's counsel in the 1967 case was in no way chargeable with such neglect, in failing to apply for youthful offender treatment for his client as to constitute a denial of adequate representation to him, since the crime for which his client had been indicted rendered him ineligible for such treatment even if either the Grand Jury or the District Attorney had recommended it (People v. Geeter, 6 Misc.2d 865, 866, 165 N.Y.S.2d 811, 812).

In addition, defense counsel may have been deterred from applying for youthful offender treatment for his client even after his plea to manslaughter was accepted because of an awareness on his part that there was a conflict of authority as to whether he had a right to make such an application. The statute clearly assigned the responsibility for recommending investigation to determine a defendant's eligibility for such treatment on the Grand Jury, the District Attorney or the court. It had been read literally as providing no means for a defendant to stimulate the exercise of the court's discretion as to whether to grant it (People v. Hines, 24 Misc.2d 484, 485, 202 N.Y.S.2d 934, 935). But at least one court has ruled to the contrary (People v. Judd, 61 Misc.2d 180, 305 N.Y.S.2d 316 (1969)), though after the plea of guilty by the instant defendant in December 1967. (See also People v. Roberts, 35 A.D.2d 750, 315 N.Y.S.2d 208 (1970); People v. Johnson, supra ). Hence, any assumption that the defendant's counsel's failure to seek youthful offender treatment for his client was a form of representation "so inadequate and ineffective as to deprive him of a fair trial" (People v. Bennett, 29 N.Y.2d 462, 464, 329 N.Y.S.2d 801, 802, 280 N.E.2d 637 (1969)) is notably inaccurate, but it also reflects a form of hindsight which is equivalent to remaking the test of People v. Tomaselli, 7 N.Y.2d 350, 356, 197 N.Y.S.2d 697, 702, 165 N.E.2d 551, 555 (1960), which is that "there is a denial of effective representation of counsel only when the representation given is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of it and correct it," into a test of errorless legal counseling. As the Appellate Division has said in People v. Sims, 55 A.D.2d 629, 630, 389 N.Y.S.2d 129, 130 (1976), "* * * it is elementary that the right to effective representation includes the right to assistance by an attorney * * * who is familiar with, and able to employ * * * basic principles of criminal law and procedure * * *". I also recognize that our Court of Appeals has "often noted that it is impossible to precisely define 'inadequate' or 'ineffe...