State ex rel. Gary v. Kendall

• Court: New York Supreme Court
• Writing for the Court: WILLIAM DECKELMAN
• Citation: State ex rel. Gary v. Kendall, 263 N.Y.S.2d 343, 47 Misc.2d 707 (N.Y. Sup. Ct. 1965)
• Decision Date: 20 September 1965
• Parties: The STATE of New York on relation of Edward Floyd GARY, Petitioner, v. Glenn M. KENDALL, Superintendent of the New York State Vocational Institute, West Coxsackie, New York, Respondent. The STATE of New York on relation of Lawrence Stephen SELLERS, Petitioner, v. Glenn M. KENDALL, Superintendent of the New York State Vocational Institute, West Coxsackie, New York, Respondent. . Lawrence County; Special Term, Albany County

Page 343

263 N.Y.S.2d 343

47 Misc.2d 707

The STATE of New York on relation of Edward Floyd GARY, Petitioner, v. Glenn M. KENDALL, Superintendent of the New York State

Vocational Institute, West Coxsackie, New York,

Respondent.

The STATE of New York on relation of Lawrence Stephen

SELLERS, Petitioner, v. Glenn M. KENDALL, Superintendent of the New York State

Vocational Institute, West Coxsackie, New York, Respondent.

Supreme Court, St. Lawrence County; Special Term, Albany County.

Sept. 20, 1965.

Robert H. Halliday, Potsdam, for petitioners.

Louis J. Lefkowitz, Atty. Gen. (Latimer B. Senior, Asst. Atty. Gen., of counsel), for respondent.

WILLIAM DECKELMAN, Justice.

From the papers submitted it appears that on or about December 21, 1964 in a petition to the St. Lawrence County Family Court Edward F. Gary was charged with stealing cars and damaging two of them, and on the same date Lawrence S. Sellers in the same court was charged with stealing cars and damaging two of them. Both of the relators were 15 years of age. On January 18, 1965 Gary was adjudged a juvenile delinquent by the said court and placed on probation. On February 5, 1965 Sellers was adjudged a juvenile delinquent and placed on probation. On May 28 both relators violated their probation by again stealing cars. On June 28, 1965 the Family Court judge committed both boys to the Elmira Reception Center for classification, program planning and transfer on a charge of violating their parole. At the time of violating parole Gary was of the age of 16 years and four days and Sellers was 15 years of age. At the time of commitment both were 16 years of age.

The issue here is whether or not Family Court properly committed these boys on June 28, 1965 when they were brought in not for the crime of stealing cars but solely for violation of their probation, January, 1965 in the case of Gary and February, 1965 in the case of Sellers.

Section 61 of the Correction Law provides that any male person between the ages of 16 and 21 years adjudicated a juvenile delinquent or convicted of any offense or of a misdemeanor, or of a felony, (except mentally defectives), shall, notwithstanding any inconsistent provision of law, be committed to the Department Reception Center for classification, etc. The next sentence then provides: 'The Reception Center shall also receive any male person adjudicated a juvenile delinquent, who is 15 years of age at time of the commission of any act which, if committed by an...