Petition — New York v. Luis J.

| [Supreme Court, U.S

-™ FILED .

| MAR 14 4977

BAP MICHAEL RODAK, JR., CLERK |

Supreme Cowt of the United States Be

OCTOBER TERM, 1976

No. 76-1270

THE PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—against—

LUIS J.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK COURT OF APPEALS

EvuGENE GoLp

District Attorney, Kings County

Attorney for Petitioner

Municipal Building

210 Joralemon Street

Brooklyn, New York 11201

(212) 643-5100

Rosert DvuBLIRER

Assistant District Attorney

of Counsel

IN THE

Supreme Court of the United States

October Term, 1976

No.

a.

.

THE PEOPLE OF THE STATE OF New York,

Petitioner,

—against—

Luis J.,

Respondent.

-*

2

PETITION FOR A WRIT OF CERTIORARI TO

THE NEW YORK COURT OF APPEALS

To: The Honorable Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States.

The People of the State of New York petition this Court

and respectfully pray that a writ of certiorari issue to

review an order of the Court of Appeals of the State of

New York entered December 16, 1976, which reversed an

order of the Appellate Division, Second Judicial Depart-

ment, entered December 31, 1975, which in turn had re-

versed, upon the People’s appeal, a sentence of the Supreme

Court, Kings County, imposed upon respondent April 10,

1975, wherein respondent had been adjudicated a Youthful

Offender, and his criminal conviction for Criminal Sale

of a Controlled Substance in the Third Degree had been

replaced by a Youthful Offender finding. The Court of

Appeals remitted the case to Supreme Court, Kings

County, for such resentence as that court, in its diseretion,

might impose.

Opinions Below

The opinion of the Court of Appeals is included in Ap-

pendix A and is reported at 40 N.Y. 2d 990; —— N.E. 2d

: N.Y.S. 2d ——. The opinion of the Appellate

Division, Second Department, is included in Appendix B

and is reported at 51 A.D. 2d 1; 379 N.Y.S. 2d 843.

Jurisdiction

The order of the New York Court of Appeals was entered

on December 16, 1976. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1257(3).

Question Presented

Whether pursuant to New York Criminal Procedure Law

§ 720.10(2) (a), an otherwise eligible criminal defendant can

be excluded from eligibility for Youthful Offender treat-

ment, based upon the degree of crime for which he was

indicted, without violating that defendant’s right to due

process of law.

The Statute Under Review

Criminal Procedure Law, § 720.10: Youthful Offender

Procedure; Definition of Terms ... 2. “Eligible youth”

means a youth who is eligible to be found a youthful

offender. Every youth is so eligible unless he (a) is in-

dicted for a class A felony,* or (b) . . . (MeKinney’s Con-

solidated Laws of New York, 1971, Criminal Procedure

Law, Volume 11A, page 317).

* By New York Session Laws, 1975, chapter 832, effective August

9, 1975, CPL § 720.10(2)(a) was amended to exclude only dees

youths indicted for a class A-I or class A-II felony.

Constitutional Provisions involved

United States Constitution, Amendments V and XIV.

History of the Case

By Kings County Indictment Number 5275/74, respon-

dent was charged with Criminal Sale of a Controlled Sub-

stance in the Third Degree (a class A-III felony) and

other crimes. On February 27, 1975, after a jury trial,

respondent was convicted of Criminal Sale of a Controlled

Substance in the Third Degree.

On April 10, 1975, at time of sentence, the court vacated

respondent’s conviction and substituted a Youthful Of-

fender finding. In so doing the court found unconstitu-

tional New York Criminal Procedure Law § 720.10(2) (a).

Thereafter, on December 31, 1975, pursuant to the Peo-

ple’s appeal, the Appellate Division, Second Department,

reversed the sentence, finding the statute violative of

neither Due Process nor Equal Protection.* The dissenters

found violations of both constitutional provisions.

On February 3, 1976, the Appellate Division, Second

Department, issued an order staying resentence pending

appeal to the Court of Appeals.

On December 16, 1976, the New York Court of Appeals

reversed the order of the intermediate appellate court,**

based upon the applicable reasons set forth in the dissent-

ing opinion of the Appellate Division. The Court of Ap-

peals held that exclusion from eligibility for Youthful

Offender treatment, based upon the degree of crime

charged in the indictment, violated Due Process.

* The Appellate Division simultaneously considered this issue in

the cases of others: Carlos Santiago and Norma Jean Drummond.

** The Court of Appeals simultaneously considered the cases of

Norma Jean Drummond, Carlos Santiago and Barry Adler.

Reasons for Allowance of the Writ

First: Criminal Procedure Law § 720.10(2)(a) does not

violate due process of law; it is constitutional. Not only

is the voting of a true bill by the Grand Jury a meaningful

phase of a criminal prosecution, but the degree of crime

charged in the indictment is the only logical qualification

for eligibility for Youthful Offender treatment, because

certain benefits inure to a youthful defendant immediately

after indictment, based merely upon a finding of eligibility

for Youthful Offender treatment: (a) the indictment must

be filed as a sealed instrument (CPL § 720.15[1]); and (b)

arraignment and all subsequent proceedings may be con-

ducted in private (CPL §720.15[2]). Thus the criterion

for eligibility must be one that is susceptible of application

at the time of indictment.

With reference to the indictment being a meaningful

phase of the criminal prosecution, the People submit that

it is more than a formal accusation. Rather, it is a formal

accusation based upon a large quantum of evidence (CPL

§ 190.65, People v. Peetz, 7 N.Y. 2d 147). Further, a person

against whom a case is pending before the Grand Jury

has a right to appear and testify (CPL § 190.50[5][a]),

and can request the Grand Jury to hear witnesses on his

behalf (CPL § 190.50[6]).

Second: The New York statute, which excludes a youth-

ful defendant from the benefits of Youthful Offender treat-

ment based upon the degree of crime for which he is in-

dicted, is similar to the statutes of other States, which

exclude a juvenile criminal defendant from the benefits of

prosecution as a juvenile, based upon the particular crime,

or degree of crime, for which he is indicted. Research has

disclosed no such statute found unconstitutional by the

courts of other States or of the United States. Rather,

those statutes have uniformly been held constitutional.

See, e.g., 11 Delaware Code § 363(d), upheld in State v.

Ayers, 260 A. 2d 162; Mississippi Code 4 43-21-31, upheld in

Jackson v. State, 311 So. 2d 658; Idaho Code § 16-1806(1)

(a), upheld in Hayes v. Gardner, 95 Idaho 137, 504 P. 2d

810; Colorado Code 4 22-1-4, upheld in Myers v. District

Court, 184 Col. 81, 518 P. 2d 836; Maryland Annotated

Code, Article 26, § 51 et seq., the relevant portion of which

was upheld in Long v. Robinson, 316 F. Supp. 22 (D. Md.), °

aff'd. 436 F. 2d 1116 (4 Cire.); Tennessee Code § 37-234,

upheld in Washington v. Tollett, 470 S.W. 2d 841. Other

jurisdictions have similar statutes, the constitutionality of

which has not yet been tested. See, e.g., Nevada Revised

Statutes §4 62.050, 62.060 and 62.080.

Further, there are other States whose legislatures have

amended former indictment-based disqualifications. See,

e.g., Indiana. However, even that amendment came only

after the prior law had been specifically upheld: State ex

rel. Imel v. Municipal Court, 225 Indiana 306, 72 N.E. 2d

357.

Research has disclosed no instance (other than the case

at bar) where an indictment-based exclusion such as this

was held unconstitutional.

Third: In declaring CPL § 720.10(2)(a) unconstitutional,

the New York Court of Appeals has rendered a decision

ineonsistent with People v. Drayton, 39 N.Y. 2d 580; 350

N.E. 2d 377, 385 N.Y.S. 2d 1, wherein the Court unani-

mously upheld the constitutionality of another sub-section

of the Youthful Offender statute, CPL § 720.20(1)(a).* In

that case the Court of Appeals did so even though it was

*CPL §720.20(1)(a) was subsequently held violative of equal

protection in Drayton v. New York, ——F. Supp.—— (E.D.N.Y.).

That case is currently on appeal before the United States Court of

Appeals.

“ .. viewing the distinction as one resting upon the gravity

of the crime charged . . .” The Court of Appeals said, in

relevant part,

“The seriousness of the crime charged in a Grand

Jury indictment ... is of significant bearing upon

the question whether Youthful Offender status

should be afforded to a particular individual.” (Peo-

ple v. Drayton, supra, at 585).

In its opinioin in the case at bar, the Court of Appeals

failed even to mention Drayton, supra, decided only seven

months earlier.

Fourth: Other rights and privileges based upon the de-

gree of crime charged have been held constitutional, e.g.,

the right to trial by jury (Duncan v. Louisiana, 391 U.S.

145). Similarly, the mere fact of indictment is an element

of a federal crime (18 U.S.C. 922[h][1]). See, United

States v. Craven, 478 F. 2d 1329 (6 Cire.), cert. denied 414

US. 866.

CONCLUSION

The petition for a Writ of Certiorari should be

granted.

Dated: Brooklyn, New York

March, 1977

Respectfully submitted,

EvucGene Gop

District Attorney

Kings County

Rosert DvusBLiRER

Assistant District Attorney

of Counsel

APPENDICES

" APPENDIX A

THe PreopLe or THE State or New York, Respondent, v.

Norma JEAN Drummonp, Appellant.

THe PropLe oF THE State oF New York, Respondent, v.

Luis J., Appellant.

THe PEOPLE OF THE State oF New York, Respondent, v.

Car.os 8., Appellant.

THe ProrpLe oF THE State or New York, Respondent, v.

Barry A., Appellant. Louis J. Lerxowrrz, Attorney-

General, Intervenor-Respondent.

Argued November 16, 1976; decided December 16, 1976

Infants—youthful offenders—eligibilty for youthful of-

fender treatment.

People v. Drummond, 51 AD2d 1, affirmed.

People v. Luis J., 51 AD2d 1, reversed.

People v. Carlos S., 51 AD2d 1, reversed.

People v. Barry A., 51 AD2d 1104, reversed.

AppEALs, by permission of a Justice of the Appellate Divi-

sion of the Supreme Court in the Second Judicial Depart-

ment, from (1) an order of that court, entered December

31, 1975, which affirmed a judgment of the Suffolk County

Court (Frank L. Gates, Jr., J.), convicting defendant

Drummond, upon her plea of guilty, of manslaughter in

the first degree, and sentencing her to an indeterminate

term of imprisonment having a maximum term of 12 years,

(2) an order of that court, entered December 31, 1975,

which (a) reversed, on the law, a sentence of the Supreme

Court (Paut T. D’Amaro, J.), imposed in Kings County

upon an adjudication that defendant Luis J. was a youthful

offender, made following his conviction, after a jury trial,

of criminal sale of a controlled substance in the third de-

2a

Appendix A

gree, and (b) remanded the case for resentence, (3) an

order of that court, entered December 31, 1975, which af-

firmed a judgment of the Supreme Court (Howarp A.

Jones, J.), rendered in Westchester County, convicting de-

fendant Carlos S., upon his plea of guilty, of criminal

possession of a controlled substance in the third degree,

and sentencing him to a term of imprisonment of one year

to life, and (4) an order of that court, entered March 22,

1976, which affirmed a judgment of the Suffolk County

Court (Joun J. J. Jonzs, J.), convicting defendant Barry

A., upon his plea of guilty, of criminal sale of a controlled

substance in the third degree (three counts) and sentenc-

ing him to three concurrent terms of imprisonment of one

year to life.

Anna M. Perry, John F. Middlemiss, Jr., and Leon J.

Kesner for Norma Jean Drummond, appellant.

Stephen Lloyd Barrett and William E. Hellerstein for

Luis J., appellant.

Samuel Bozer for Carlos S., appellant.

Henry J. Boitel for Barry A., appellant.

Henry F. O’Brien, District Attorney, Suffolk County

(Ronald E. Lipetz of counsel), for respondent in the first

above-entitled action.

Eugene Gold, District Attorney, Kings County (Robert

Dublirer of counsel), for respondent in the second above-

entitled action.

Carl A. Vergari, District Attorney, Westchester County

(B. Anthony Morosco of counsel), for respondent in the

third above-entitled action.

Henry F. O’Brien, District Attorney, Suffolk County

(Denis R. Hurley of counsel), for respondent in the fourth

above-entitled action.

3a

Appendix A

Louis J. Lefkowitz, Attorney-General (Jules E. Oren-

stein and Samuel A. Hirshowitz of counsel), intervenor-

respondent.

Per Curiam. Orders reversed in the Luis J., Carlos S.,

and Barry A. actions, and the several proceedings remitted

to the respective sentencing courts for consideration of

defendants as youthful offenders and such resentencing as

the court may in its discretion impose in accordance with

CPL 720.20. The order in the Drummond action is affirmed.

For the applicable reasons stated in the dissenting opin-

ion of Mr. Justice Samvet Rapin at the Appellate Division

the limitations in CPL 720.10 conditioning eligibility for

youthful offender treatment on the highest count of the

indictment violate due process of law, and to that extent

are declared unconstitutional (see, also, People v. Goodwin,

49 AD2d 53, 55-58 [Greensort, J., dissenting], concluding

that the statute is unconstitutional but on an equal protec-

tion analysis; People v. Brian R., 78 Mise 2d 616 [Potskxy,

J.], aff’d 47 AD2d 599). Such limitations make the privi-

leged penal sanction to be imposed depend solely upon an

accusation, however formal, rather than an adjudication,

however informal, in the adversarial criminal process.

Thus viewed, the issue involves due process of law rather

than an equal protection analysis which so often raises

nebulous problems (see People v. Charles S., 79 Mise 2d

1058, 1059-1060 [Potsxy, J.]; People v. Brian R., supra).

A plea of guilty in this context involves no waiver because

the illegality subject to appellate review affects the sentence

to be imposed. By traditional analysis the illegality of a

sentence imposed is generally subject to review. Insofar

as the presentence proceedings are concerned the initial

steps taken under CPL 720.10 are only to determine eligi-

bility for treatment as a youthful offender. The determina-

tions do not become choate until sentence.

ta

Appendix A

With respect to defendant Drummond the order is af-

firmed solely on the ground that the issue of invalidity of

the youthful offender statute was never raised until the

appeal was pending in the Appellate Division. Hence, the

contention of invalidity was waived.

Chief Judge Breitex and Judges Jasen, GaBrie.ii, Jones,

WacHTLer, Fucusserc and Cooke concur in Per Curiam

opinion.

In People v. Drummond: Order affirmed.

In People v. Luis J.: Order reversed and the case re-

mitted to Supreme Court, Kings County, for further pro-

ceedings in accordance with the opinion herein.

In People v. Carlos S.: Order reversed and the case re-

mitted to Supreme Court, Westchester County, for further

proceedings in accordance with the opinion herein.

In People v. Barry A.: Order reversed and the case re-

mitted to Suffolk County Court for further proceedings in

accordance with the opinion herein.

5a

APPENDIX B

Cases DECIDED IN THE APPELLATE DIVISION OF THE

Supreme Court oF THE StaTE oF NEw YorK

Tue Prope or THE State oF New York, Respondent, v.

Cartos Santiaco, Appellant.

Tue PEoPpLeE oF THE State oF New York, Respondent, v.

Norma JEAN Drummonp, Appellant.

Tue PEeop.e oF THE STaTE OF New York, Appellant, v. Luis

JIMENEsS, Respondent.

Second Department, December 31, 1975

Infants—youthful offenders—subiivision 2 of CPL

720.10 (prior to L 1975, ch 832, eff Aug. 9, 1975), which pro-

vides that person between ages of 16 and 19 is eligible for

youthful offender treatment “unless he (a) is indicted for

a class A felony, or (b) has previously been convicted of

a felony”, is constitutional—defendants who have been

allowed to plead guilty to one of number of crimes charged

in satisfaction of entire indictment or to lesser crime than

charged have derived benefits which constitute grounds for

waiver of subsequent claims by them that they could not

constitutionally be rendered ineligible for youthful offender

treatment on basis of charge or charges in indictment—

defendant who was indicted on, and convicted by jury of,

eount which precludes consideration for youthful offender

treatment was improperly accorded such treatment.

1. Subdivision 2 of CPL 720.10 (prior to L 1975, ch 832,

eff Aug. 9, 1975), which provides that a person between

the ages of 16 and 19 is eligible for youthful offender treat-

ment “unless he (a) is indicted for a class A felony, or (b)

has previously been convicted of a felony”, is constitutional.

6a

Appendix B

It does not violate the dictates either of due process or

equal protection of the laws.

2. A youth within the eligible age group has no absolute

right to adjudication as a youthful offender but has the

right, if so it may be called, only to be considered for

youthful offender treatment. Such an attenuated right

should not survive a conscious and knowing plea of guilty.

Defendants who have been allowed to plead guilty to one

of a number of crimes charged in satisfaction of an entire

indictment or to a lesser crime than charged have derived

benefits which constitute grounds for waiver of subse-

quent claims by them that they could not constitutionally

be rendered ineligible for youthful offender treatment on

the basis of the charge or charges in the indictment. They

entered into a bargain with full knowledge of the conse-

quences and with the receipt of benefits under the bargain

not otherwise available to them, and their acceptance of

those benefits precludes the maintenance of such subsequent

claims. Judgments convicting such defendants upon their

pleas of guilty are affirmed.

3. A defendant who was indicted on, and convicted by a

jury of, a count which precludes consideration for youthful

offender treatment was improperly accorded such treat-

ment. His sentence is reversed and his case is remanded

for resentencing.

AppeaL by defendant Carlos Santiago from a judgment

of the Supreme Court (Howarp A. Jonss, J.), rendered

April 28, 1975 in Westchester County, convicting him, upon

his plea of guilty, of criminal possession of a controlled

substance in the third degree, and sentencing him to a term

of imprisonment of one year to life.

7a

Appendiz B

AppgeaL by defendant Norma Jean Drummond from a

judgment of the Suffolk County Court (Frank L. Gates, Jr.,

J.), rendered February 7, 1975, convicting her, upon her

plea of guilty, of manslaughter in the first degree, and

sentencing her to an indeterminate term of imprisonment

having a maximum term of 12 years.

AppgaL by the People from a sentence of the Supreme

Court (Pavt T. D’Amaro, J.), imposed April 10, 1975 in

Kings County, upon a determination that defendant Luis

Jimeness was a youthful offender, made following his con-

viction, after a jury trial, of criminal sale of a controlled

substance in the third degree.

Samuel Boxer for Carlos Santiago, appellant.

Carl Vergari, District Attorney (B. Anthony Morosco of

counsel), for respondent.

John F. Middlemiss, Jr. (Anna M. Perry and Leon J.

Kesner of counsel), for Norma Jean Drummond, appellant.

Henry F. O’Brien, District Attorney (Ronald E. Lipetz

of counsel), for respondent.

Eugene Gold, District Attorney (Laurie Stein Hershey

and Robert Dublirer of counsel), for appellant.

William E. Hellerstein and William J. Gallagher (Steven

Lloyd Barrett of counsel), for Luis Jimeness, respondent.

Horpxiys, J. We treat these three appeals together be-

cause the sole issue in each is whether CPL 720.10 (subd 2)

is unconstitutional. The challenged statute provides that a

person between the ages of 16 and 19 is eligible for youthful

offender treatment “unless he (a) is indicted for a class A

felony, or (b) has previously been convicted of a felony”

(CPL 720.10, subd 2). We hold that the statute is consti-

tutional.

As the factual pattern in each appeal differs, we state

the circumstances in each separately.

8a

Appendiz B

THE DEFENDANT SANTIAGO

Santiago was indicted in January or February, 1974 for

the crimes of criminal sale of a controlled substance (co-

caine) in the third degree, criminal possession of a con-

trolled substance (cocaine) in the third degree, criminal

sale of a controlled substance (marijuana) in the fifth

degree and criminal possession of a controlled substance

(marijuana) in the sixth degree; in addition, in March,

1974 he was indicted for the crime of criminal possession

of a controlled substance (marijuana) in the sixth degree.

During his trial Santiago pleaded guilty to the crime of

criminal possession of a controlled substance in the third

degree in satisfaction of all counts of both indictments. At

that time Santiago was advised of the consequences of his

plea and that the mandatory minimum sentence was one

year to life. A month later, and before sentencing, his

counsel moved to vacate the conviction and to substitute a

youthful offender adjudication on the ground that the

statute forbidding the application of youthful offender

treatment to persons indicted for class A felonies was

unconstitutional.* In reply the prosecution claimed, among

other things, that Santiago could not challenge the statute

since he had entered a plea of guilty. The motion was

denied and Santiago received a sentence of one year to life.

On this appeal Santiago contends that the statute is

unconstitutional and that he must be resentenced as a youth-

ful offender.

1 The statute (CPL 720.10, subd 2), so far as pertinent, provides:

‘every youth is so eligible unless he (a) is indicted for a class A

felony, or (b) = ore _ apo Y > of a felony.” A “youth”

iS a person at least ears 0 and less than 1

(CPL 720.10, subd 1). , and a

9a

Appendiz B

THE DEFENDANT DRUMMOND

Drummond was indicted for the crime of murder. She

pleaded guilty to the crime of manslaughter in the first

degree (a class B felony). No application was made by her

that she be afforded youthful offender treatment. She

received an indeterminate term of imprisonment with a

maximum term of 12 years. On appeal she contends, inter

alia, that the statute is unconstitutional.

THE DEFENDANT JIMENESS

Jimeness was indicted for criminal sale of a controlled

substance in the third degree, criminal possession of a

controlled substance in the third degree and criminal pos-

session of a controlled substance in the seventh degree.

After a jury trial he was convicted of the crime of criminal

sale of a controlled substance in the third degree.

At sentencing his counsel requested that Jimeness be

granted youthful offender treatment. That application was

opposed by the prosecution, but the trial court granted the

relief. Jimeness was then sentenced to five years’ proba-

tion on condition that he undergo inpatient treatment at

the Drug Abuse Control Commission for a period not in

excess of one year. The People appeal, claiming that the

sentence imposed was illegal as the relevant statutes re-

quire imprisonment (Penal Law, § 60.05, subd 1; 70.00).

THE STATUTE

The predecessor to CPL article 720 (Code Crim Pro, tit

VIT-B, §§ 913-e-913-r) was enacted in 1944 (L 1944, ch 632).

Section 913-e read substantially as CPL 720.10 (subd 2)

10a

Appendiz B

now reads.? Under the provisions of the Code of Criminal

Procedure, a four-step process was established to determine

whether a youth should be granted youthful offender

treatment: (a) the grand jury or the District Attorney

recommended, or the court, on its own motion, determined,

that an investigaion of the youth be made; (b) the court

approved the recommendation and directed the investiga-

tion to be made (upon consent of the defendant); (c) the

investigation was made; and (d) the court, on the return

of the results of the investigation, either granted or denied

youthful offender treatment (see Denzer, Practice Com-

mentary, McKinney’s Cons Laws of NY, Book 11A, CPL

art 720, pp 314-315). If the court granted youthful offender

treatment, the indictment was sealed and replaced by a

youthful offender information; a private trial was then

held on the information; an adjudication of guilt did not

operate as a criminal conviction (Code Crim Pro, § 913-n).

The original version of the CPL (L 1970, ch 996) did not

change the basic structure of title VII-B. However, be-

cause that structure was considered “extremely cumber-

some”, the present article 720 was substituted (Denzer,

Practice Commentary, supra, p 315). The most prominent

alteration was that the process of investigation and de-

termination of youthful offender treatment was transferred

from a point before the adjudication of guilt to a point after

that adjudication (L 1971, ch 981; Denzer, Practice Com-

mentaries, supra, p 316). “The new scheme”, states Pro-

fessor (now Judge) Denzer, “possesses practically all the

virtue of the former ones while concomitantly shedding

? Section 913-e, in part, provided, “and the term ‘youthful offender’

shall mean a youth who has committed a crime not punishable by

a life imprisonment, who has not previously been convicted of

a v's

lla

Appendix B

their burdensome, wasteful investigation requirements and

other destructively cumbersome features” (Denzer, Practice

Commentary, supra, p 317). In both schemes, however,

the eligibility standard remained the same and the purpose

underlying both procedures was identical—to avoid the

stigma attaching to a conviction for youths treated as

youthful offenders (see People v. Shannon, 1 AD2d 226,

231, affd 2 NY2d 792).

PRIOR DECISIONAL LAW

The issue of the constitutionality of the Youthful Offender

Procedure (CPL, art 720) has been raised previously in

several cases, but without uniform conclusions. In People

v. Brian R. (78 Mise 2d 616), Judge Poxsxy found CPL

720.10 (subd 2) unconstitutional because it violated both

due process and equal protection of the laws. Thus, he

said (p 619) that the statute deprived youths of due process

“because it gives conclusive weight to the untested allega-

tions of the indictment”, and of equal protection “since

it irrationally discriminates against those youths who had

been charged with class A felonies but who would be

ultimately convicted of lesser felonies.” The Appellate

Division, First Department, affirmed without opinion (Peo-

ple v. Brian R., 47 AD2d 599). No appeal from that decision

has been perfected by the People. In the First Department,

therefore, the state of the law is that the statute is uncon-

stitutional.

In People v. Goodwin (49 AD2d 53), the Appellate Divi-

sion, Third Department, by a split decision, held the statute

constitutional. The majority (per Mary, J.) found no denial

of due process or equal protection; Mr. Justice GreeNBLorTT,

dissenting, was of the view that the statute offended equal

12a

Appendiz B

protection for the reason stated by Judge Potsxy. Ap-

parently, no appeal is pending from that decision.’ In the

Third Department, therefore, the law is that the statute is

constitutional.

Other reported decisions reaching varying results as to

the constitutionality of the statute have not been considered

by the appellate courts.‘ Unquestionably, the effect of the

stringent narcotics laws has induced the assault upon the

constitutionality of the statute’ (see People v. McNair, 46

AD2d 476, 479). It is, after all, the classification of crimes

by the Legislature which is the operative factor in the

determination of eligibility, and the enactment of legisla-

tion denominating certain violations of the narcotics laws

as class A-I, A-II and A-III felonies (L 1973, chs 276-278)

prevents youths charged with these crimes from being

treated as youthful offenders. The statute has since been

amended to remove the prohibition of eligibility to youths

indicted for class A-III felonies, thus avoiding the whole-

sale denial of consideration for youthful offender treat-

ment to youths indicted for crimes arising out of violations

of the narcotics laws (CPL 720.10, subd 2, as amd by L

1975, ch 832, eff Aug. 9, 1975).

Nevertheless, the issue remains open for the present

defendants and those similarly situated, as well as for

® We are informed that an application by the defendant for leave

to appeal to the Court of Appeals was denied.

*In People v. Charles S. (79 Misc 2d 1058) Judge Potsxy held

that the defendant did not lack standing to contest the statute, even

t h he had been convicted of a class A felony. In People v. Ruben

S. (81 Misc 2d 305) Mr. Justice Frnz determined that the statute was

unconstitutional, citing People v. Brian R. (supra) with approval.

Mr. Justice MARANO, in People v. Estrada (80 Misc 2d 608), came

to a contrary conclusion and held the statute constitutional.

13a

Appendix B

youths who may be indicted in the future for class A-I or

class A-IT felonies. Moreover, in view of the conflict which

exists in the decisions, it is highly important that an au-

thoritative ruling be made on the issue. We invite, there-

fore, an application for leave to appeal to the Court of

Appeals from the determinations reached here so that such

a ruling can be made.

THE CLAIMS OF THE PARTIES

As we see it, the constitutionality of the statute has

several aspects: (1) whether, as the defendants contend, it

breaches due process; (2) whether, as the defendants con-

tend, it breaches the equal protection of the laws; and (3)

whether, as the People contend in the cases of Santiago

and Drummond, a defendant who pleads guilty to a lesser

crime than the crime for which he was indicted may chal-

lenge the constitutionality of the statute. We address the

last contention first.

THE EFFECT OF A PLEA OF GUILTY

A plea of guilty waives all nonjurisdictional defects

(People v. La Ruffa, 34 NY2d 242, 245; People v. Schiskey,

39 AD2d 608), among which are the unconstitutional com-

position of the grand jury (Tollett v. Henderson, 411 US

258) and the constitutional rights of confrontation and jury

trial (People v. Dwight S., 29 NY2d 172, 176; Matter of D.,

27 NY2d 90, 98). There is no absolute right under the

statute, however, that one eligible be adjudicated a youth-

ful offender; whether to make such an adjudication lies

wholly within the discretion of the court (CPL 720.20;

People v. Rosati, 39 AD2d 592). True, it is a reviewable

l4a

Appendix B

discretion (cf. People v. Kerr, 43 AD2d 895) ; nevertheless,

it is also the fact that the eligible youth cannot claim

youthful offender status simply because he is within the

qualified age group. The right, if so it may be called, is

only to be considered for youthful offender treatment.

Such an attenuated right should not survive a conscious

and knowing plea of guilty. A defendant thereby elects not

to stand trial; Santiago and Drummond, in the cases on

appeal, have been allowed to plead guilty to one of a

number of crimes charged in satisfaction of an entire

indictment or to a lesser crime than for which he had been

indicted. Under these circumstances, the benefits derived

by these defendants constitute grounds for waiver of the

claim now made for youthful offender treatment.

Moreover, as pointed out by Mr. Justice SHaprro in a

recent decision involving the constitutionality of another

provision of the Youthful Offender Procedure (CPL 720.

20), when the conviction as the result of a plea of guilty to

a lesser crime is the product of plea negotiation, a defen-

dant, as a matter of policy, should be held to his bargain

(People v. Drayton, 47 AD2d 952, 957, n 1). In Drum-

mond’s case the record shows clearly that the plea was

made by her in contemplation of a sentence to an inde-

terminate term of imprisonment having a maximum of 12

years. Moreover, no application for youthful offender

treatment was ever made by her. In Santiago’s case the

record shows that the plea was made after the trial court

made clear to him that the mandatory sentence was one

year to life imprisonment. In his case the plea to one

count of the indictment was accepted in full satisfaction of

the several counts of the indictment. Thus, both entered

into a bargain with full knowledge of the consequences and

eee ae -

15a

Appendix B

with the receipt of benefits under the bargain not otherwise

available to them (cf. People v. Foster, 19 NY2d 150). The

acceptance of the benefits precludes the maintenance of the

claims now made.°

THE CONSTITUTIONAL CLAIMS

Jimeness did not plead guilty, but stood trial and was

found guilty of one of the counts for which he was indicted

—a count which precludes consideration for youthful of-

fender treatment. Nevertheless, he was accorded youthful

offender treatment. He now contends that the Criminal

Term was correct in disregarding the statute, on the ground

that it violates both due process and the equal protection of

the laws. Moreover, the same claims are made by Sartiago

and Drummond and, despite our belief that their pleas of

guilty waive their right to raise the claims, we are dis-

posed to consider the constitutional issues on behalf of all

three defendants.

Initially, we observe that we see no violation of pro-

cedural due process here. All three defendants were

afforded the traditional stages in the criminal process,

indictment, arraignment, trial or plea of guilty and sen-

tencing. The defendants’ point is, rather, that substantive

5 We are aware of the recent decision of the Supreme Court in

Menna v. New York (44 US Law Week 3304, iiee.. 18, 1975),

holding that a plea of guilty does not foreclose a claim of double

i rdy. As we understand it, that decision does not overrule Tollett

re Ai (411 US 258, supra) and kindred cases. Menna holds

that a counseled plea of guilty renders irrelevant constitutional issues

not logically inconsistent with guilt and does not prevent conviction

if guilt is established; and, further, that no matter how valid the fact

of guilt may be, the ‘State cannot convict a defendant twice for the

same crime. Here we think the plea of guilty renders irrelevant the

constitutional issues raised, for they are not logically inconsistent with

guilt.

l6a

Appendiz B

due process is breached because the charge in the indict-

ment persisted beyond conviction in rendering them in-

eligible for youthful offender treatment. That is, the

defendants say that since they have been convicted of a

crime which, had they been indicted for it, would have

permitted youthful offender treatment, they have been un-

constitutionally affected because the higher charge in the

indictment forbids eligibility. In the cases of Santiago and

Drummond this claim is true, for by their pleas of guilty

they were convicted of one of several counts in the indict-

ment or of a lesser charge than that for which they were

indicted. In the case of Jimeness the claim is not true; his

conviction was for the same crime for which he was indicted

and which originally rendered him ineligible. Hence, it may

be said that he has not been harmed by the statute (contra,

see People v. Charles S., 79 Mise 2d 1058). Even so, we

believe that we should reach the merits of the claim of lack

of due process on behalf of all the defendants.

In our State the Legislature has wide power to prescribe

the nature and definition of crimes and the procedure to be

followed in the prosecution and punishment of defendants

(Matter of Rudd vy. Hazard, 266 NY 302, 306; People ez rel.

Forsyth v. Court of Sessions of Monroe County, 141 NY

288; Matter of Dodd vy. Martin, 248 NY 394, 398-399;

People v. Gowasky, 244 NY 451; ef. Matter of Lynch, 8 Cal

3d 410). Under familiar principles, a strong presumption

must be entertained that the Legislature has determined

that facts exist indicating the need for the enactment of

the statute and that it has responded to that need by pro-

viding the procedure laid down in the statute (Matter of

Taylor v. Sise, 33 NY2d 357; East New York Sav. Bank v.

Hahn, 293 NY 622, 628, affd 326 US 230).

17a

Appendiz B

The doctrine of substantive due process is concerned with

whether a particular State regulation of an individual

interest is justified. Where the individual interest involves

life, liberty or property, the test under substantive due

process is whether there is a reasonable connection between

the statute and the promotion of the safety and welfare of

the community (People v. Pagnotta, 25 NY2d 333, 337;

People v. Bunis, 9 NY2d 1, 4; People v. Broadie, 37 NY2d

100, 117). Even were we to consider that the means adopted

by the Legislature to accomplish its purpose are debatable,

that would not suffice to declare the statute unconstitutional

(Lincoln Bldg. Assoc. v. Barr, 1 NY2d 413, 415, app dsmd

355 US 12; People v. Broadie, supra).

Where, however, the individual interest involves a funda-

mental right, the test of substantive due process is whether

a “compelling state interest” was advanced by the regula-

tion, and whether the regulation was the least restrictive

method available to effectuate the “compelling state in-

terest” (Roe v. Wade, 410 US 113, 155; National Assn. for

Advancement of Colored People v. Button, 371 US 415,

438). The test of “reasonableness” is similar to the test of

“rational grounds” used in determining a claim of unequal

protection of the laws; and the test of “least restrictive

method” in advancing a “compelling state interest” is also

similar to the test of the “two-tiered” standard used in

considering equal protection, as we shall see beyond. Rather

than to discuss the bases of the legislation twice, we think

it preferable to consider the claims of a violation of due

process and equal protection together. For the purpose of

these appeals, the two constitutional claims coalesce; and

we view the claim of lack of substantive due process as

subsumed under the more critical claim. of the breach of

equal protection of the laws.

18a

Appendix B

The defendants’ contentions regarding equal protection

are relatively simple: they say that they are treated dif-

ferently from others similarly cireumstanced in that they

may not receive youthful offender treatment because of the

charge in the indictment, though convicted of a lesser crime

permitting eligibility, whereas others indicted and convicted

of the same lesser crime may receive youthful offender

treatment. This result, they claim, deprives them of the

equal protection of the law.

The test to be applied in evaluating this argument has

been undergoing evolutionary changes. Clearly, legislation

not touching “suspect” classifications of race, national ori-

gin and religion, or interests of fundamental importance,

must be judged by the test whether a rational basis exists

for the classifications made (James v. Strange, 407 US 128,

140; Dandridge v. Williams, 397 US 471, 487). “The con-

scious exercise of some selectivity in enforcement is not in

itself a federal constitutional violation” (Oyler v. Boles,

368 US 448, 456; ef. People v. Goodman, 31 NY2d 262, 268).

If, however, the discrimination rests on race, religion or

national origin, or affects interests of fundamental im-

portance, the State must establish that the statute is

necessary to vindicate a compelling governmental interest

and that it does not impose more burdens than are reason-

ably needed to accomplish the purpose (Shapiro v. Thomp-

son, 394 US 618, 634; San Antonio School Dist. v. Rod-

riguez, 411 US 1, 33-34). Thus, a preliminary question must

be met: whether the classification must be examined under

the test of rationality alone, or under the more rigorous

test of justification through a compelling State interest.‘

* The dissenting opinion of Judge Jones in Matter of Malpica-Orsini

(36 NY2d 568, 578, 581-583) treats perceptively of these considera-

tions.

19a

Appendiz B

Clearly, the statute does not fall within the first branch

of the preliminary question—it does not touch a suspect

classification based on race, religion or national origin.

Nor do we think that it falls within the second branch con-

cerning interests of fundamental importance, though this

construction presents a closer issue. Differences in treat-

ment of criminal offenders have been considered not to

affect an interest of fundamental concern (see Marshall v.

United States, 414 US 417; McGinnis v. Royster, 410 US

263 ; United States ex rel. McGill v. Schubin, 475 F2d 1257).

As was said in Marshall v. United States (414 US 417, 428,

supra): “It should be recognized that the classification

selected by Congress is not one which is directed ‘against’

any individual or category of persons, but rather it rep-

resents a policy choice in an experimental program made

by that branch of Government vested with the power to

make such choices. The Court has frequently noted that

legislative classifications need not be perfect or ideal. The

line drawn by Congress at two felonies, for example, might,

with as much soundness, have been drawn instead at one,

but this was for legislative, not judicial choice.”

The States, therefore, may legislate, within the test of

rationality, to grant youths of a certain age span benefits

not accorded other criminal offenders without running afoul

of demonstrating a compelling State interest; this ap-

proach allows the States to experiment in a program which

will confer a benefit on one but not on another in the

criminal process on the basis of a choice rationally reached

(ef. People v. Butler, 46 AD2d 422, 425; United States v.

Craven, 478 F2d 1329, 1338, cert den 414 US 866, rehearing

den 414 US 1086; Smith v. Follette, 445 F2d 955). We turn,

consequently, to the statute.

20a

Appendiz B

The Legislature, from the beginning of the youthful of-

fender program, excluded youths who had been guilty of

criminal conduct punishable by death or life imprison-

ment—the punishment now inflicted on a defendant guilty

of a class A felony. That punishment is customarily re-

served for defendants guilty of the most serious felonies.

The Legislature evidently did not desire to confer the

benefits flowing from youthful offender treatment on those

youths whose conduct was of such heinous character; and

it is not contended by the defendants that this discrimina-

tion is without a rational basis.

When the revision of the youthful offender provisions of

the Code of Criminal Procedure was accomplished through

the enactment of the present article 720 of the CPL, the

Legislature decided to continue the distinction in the stand-

ard of eligibility, but to alter the time of determination of

such status from a stage prior to conviction to a stage

subsequent to conviction. This change was made because

the procedure under the code had proved to be cumber-

some and administratively inadequate. The charge in the

indictment, not the charge for which the defendant was

found guilty, became the legislative choice upon which

eligibility was determined. In making that choice, the

Legislature did not discriminate without rational basis.

Throughout the criminal process, there exist certain dis-

eretionary choices which are inherent in a system of law

enforcement. First, a prosecutorial discretion exists that

is unreviewable: that is, whether an individual shall be

prosecuted, and for what crime, or degree of crime. That

discretion is protected from oversight by the courts under

the doctrine of separation of powers (United States v. Coz,

342 F2d 167, cert den sub nom Cox v. Hauberg, 381 US

935; Newman v. United States, 382 F2d 479; ef. Nader v.

2la

Appendiz B

Sazxbe, 497 F2d 676, 679, n 18; see K. Davis, Discretionary

Justice: A Preliminary Inquiry, p 165). Thus, at that

point in the process, the opportunity for different treat-

ment between persons similarly situated presents itself.

Second, the Grand Jury may exercise its own discretion

either in not voting an indictment or in returning an indict-

ment against an individual for one or more counts (Kadish,

Legal Norm and Discretion in the Police and Sentencing

Processes, 75 Harv L Rev 904, 905, n 2, 916, n 35). At

that point, too, persons similarly situated may be differ-

ently treated.

Third, the petit jury may, by its verdict exercise its power

of nullification or of mercy by finding a defendant not

guilty, or guilty of a lesser degree of the crime charged,

even as to codefendants similarly situated (J. Frank,

Courts on Trial, pp 14-36; S. Ingber, A Dialectic: The Ful-

fillment and Decrease of Passion in Criminal Law, 28 Rutg

L Rev 861, 932-933; A. Scheflin, Jury Nullification: The

Right to Say No, 45 S Cal L Rev 168, 187). At this third

point, persons similarly situated may be differently treated

(ef. People v. Cohen, 223 NY 406 429-430; People v. Kief,

126 NY 661, 664; People v. O’Dell, 34 AD2d 856).

The Legislature has in effect elevated the second point—

the action of the Grand Jury—for its choice in the deter-

mination of eligibility for youthful offender treatment.

That choice may, of course, result in different treatment of

persons similarly situated. But the same result of differ-

ence in treatment may arise from the verdict of the petit

jury or the discretion of the prosecutor. Thus, two youths

implicated equally in the commission of a murder, and in-

dicted for that crime, may be differentiated at trial by the

petit jury to the end that one is found guilty of man-

slaughter (allowing eligibility) and the other of murder

(not allowing eligibility).

22a

Appendiz B

The Legislature, in short, was entitled to combine the

ease in the administration of judical process with the obvi-

ous differences of treatment inhering in the usual operation

of the enforcement of the criminal law as grounds for the

creation of the eligibility standards of the statute. It is not

important which of the grounds is primary. As was said

in McGinnis v. Royster (410 US 263, 276, supra): “Yet,

our decisions do not authorize courts to pick and choose

among legitimate legislative aims to determine which is

primary and which subordinate. Rather, legislative solu-

tions must be respected if the ‘distinctions drawn have

some basis in practical experience’, South Carolina v. Katz-

enbach, 383 U.S. 301, 331 (1966), or if some legitimate

state interest is advanced, Dandridge v. Williams, 397 US.,

at 486. So long as the state purpose upholding a statutory

class is legitimate and nonillusory, its lack of primacy is

not disqualifying.”

The statute, accordingly, satisfies an administrative pur-

pose and fixes an objective test for eligibility. That, inci-

dentally, some youths will not benefit to the same degree as

others does not abridge their constitutional rights. The

quarrel of the defendants Santiago and Jimeness is, indeed,

with the inclusion of the violation of the narcotic laws

within the definition of class A felonies; that, however, was

a classification plainly within the legislative competence.

The discretionary exercise of power implicit within the

statute does not constitute a constitutional infirmity, as

decisions in the Federal field attest (see Cox v. United

States, 473 F2d 334; Washington v. United States, 401 F2d

915; United States v. Sacco, 428 F2d 264; ef. United States

v. Bland, 472 F2d 1329). The finding of the Grand Jury

that sufficient evidence existed to justify the return of an

indictment containing charges of the level of a class A

23a

Appendiz B

felony provided a clear and permissible expression of the

goal of the Legislature to deny to youths charged with

those crimes the benefits of youthful offender process, and

complied with both substantive due process and equal pro-

tection standards.’

We conclude, therefore, that the statute does not violate

the dictates either of due process or equal protection of the

laws. We affirm the judgments in People v. Santiago and

People v. Drummond. We reverse the sentence in People v.

Jimeness and remand for resentencing.

Rasin, Acting P. J. (dissenting). In my view, CPL 720.10

(subd 2) violates the constitutionally-protected guarantees

of due process and equal protection of the laws. The equal

protection violation results from the arbitrary distinctions

drawn by the statute between classes of individuals predi-

cated on the seriousness of the crime charged in the in-

dictment. The anomalous situation created by the statute

is arbitrary and capricious and unsupported by any rational

basis. As stated by Mr. Justice GreEENBLOTT in his dissent

in People v. Goodwir (49 AD2d 53, 56-57), a case involving

the same issue now confronted by this court: “It cannot

be denied that a capricious result is obtained where a

youth indicted for a class B felony, and convicted of that

crime receives youthful offender consideration, while an-

other youth originally indicted for a class A felony count

is convicted of a class E felony, and is then refused youth-

7 The effect of the indictment is more than simply the allegation of

the charge against the defendant; it may (1) affect the right to trial

by jury (Duncan v. Louisiana, 391 US 145), (2) affect the defen-

dant’s conduct to transact certain types of business (United States v.

Craven, 478 F2d 1329), (3) define the forum (Family Ct Act,

§ 813). (4) fix the number of peremptory challenges (CPL 270.25,

subd 2), or (5) allow a longer period for the prosecution to move a

case for trial (CPL 30.10).

24a

Appendix B

ful offender consideration. The classification denying such

procedures to youths previously convicted of a felony, for

example, is reasonable. I see no rational basis for an in-

equality of treatment amongst youths who have been con-

victed of the same offense merely because one of them had

originally been charged with a higher crime.”

While statutory distinctions based on rational grounds

may be drawn between classes of individuals, the distine-

tions made “ ‘must be reasonable, not arbitrary, and must

rest upon some ground of difference having a fair and

substantial relation to the object of the legislation, so that

all persons similarly circumstanced shall be treated alike’ ”

(Reed v. Reed, 404 US 71, 76). At the very least, “some

relevance to the purpose for which the classification is

made” must be shown (Bazstrom v. Herold, 383 US 107,

111; see, also, Dandridge v. Williams, 397 US 471, 485;

Rinaldi v. Yeager, 384 US 305, 309). The statute under

review fails to satisfy these tests; the classification it makes

serves no “legitimate and nonillusory” State purpose

(McGinnis v. Royster, 410 US 263, 276). A far different

situation is presented where the classification created in a

statute defining eligibility for a program of postconviction

treatment is grounded upon an articulable rationale. An

exclusion from eligibility based upon the prior conviction

of a felony is a good example (see CPL 720.10, subd 2,

par [b] ; People v. Goodwin, supra, p 55; Marshall v. United

States, 414 US 417, 423-425).

In my view, the statute also fails to comport with the

concept of due process of law. “Even though the concept of

due process of law is not final and fixed * * * [its] limits are

derived from considerations that are fused in the whole

nature of our judicial process” (Rochin v. California, 342

US 165, 170). By according a decisive role in the determina-

tion of which youths are eligible for youthful offender

25a

Appendia B

treatment to nothing more substantial than a written state-

ment of unproven allegations (see CPL 1.20, subd 3), the

statute offends reasonable notions of fairness. There is no

reasonable justification or necessity for fixing the degree

of the crime charged as the determinative factor. It is clear

that an indictment does not survive a trial and verdict; it

should play no part in determining the type of postconvic-

tion treatment accorded to youngsters otherwise eligible

for youthful offender consideration (see People v. Brian R.,

78 Mise 2d 616, 619, aff’d 47 AD2d 599).

I do not agree with the majority’s position that a signifi-

cant question of standing to challenge the constitutionality

of the statute is presented by the Santiago and Drummond

appeals. As I read the majority’s resolution of this issue,

the acceptance by Santiago and Drummond of the benefits

of their guilty pleas, knowingly and voluntarily made, pre-

cludes their constitutional challenges on the ground that

the entry of the pleas waives all nonjurisdictional defects

(see People v. La Ruffa, 34 NY2d 242, 245). Although the

proposition of law is certainly correct, I do not see how

it applies in this situation. The constitutional infirmity in

the statute is simply not akin to a waivable defect of pro-

cedure or to the knowing relinquishment of some consti-

tutionally-guaranteed right, such as the right to trial by

jury (NY Const, art I, §¢~). What we are dealing with

here is an issue of eligibility for a system of postconviction

treatment rather than a question of the voluntary bar-

gaining-away of rights enjoyed by an individual. In short,

the right to be considered for youthful offender treatment,

sinee it is a matter of statutory definition, is not a right

which can be relinquished by a defendant as the quid pro

quo of a plea bargain. Any otherwise eligible youth in-

dicted for a class A felony and thereby deprived of con-

26a

Appendix B

sideration for youthful offender treatment has standing to

challenge the statute (see People v. Charles S., 79 Mise 2d

1058).

I would reverse the judgments as to Santiago and Drum-

mond and would remand for compliance with the procedure

set forth in CPL 720.20 regarding youthful offender de-

terminations. I would affirm the judgment as to Jimeness.

In People v. Santiago, LarHam and Brennan, JJ., concur

with Hopkins, J.; Rapin, Acting P.J., dissents and votes to

reverse and remand the case to the Supreme Court, West-

chester County, for compliance with the procedure set

forth in CPL 720.20 regarding youthful offender deter-

minations, in an opinion, in which Curist, J., concurs.

Judgment affirmed.

In People v. Drummond, LatHam and Brennan, JJ., con-

cur with Hopxrins, J.; Rapin, Acting P.J., dissents and

votes to reverse and remand the case to the County Court,

Suffolk County, for compliance with the procedure set

forth in CPL 720.20 regarding youthful offender deter-

minations, in an opinion, in which Curist, J., concurs.

Judgment affirmed.

In People v. Jimeness, LatHaM and Brennan, JJ., concur

with Hopkins, J.; Rapin, Acting P.J., dissents and votes to

affirm, in an opinion, in which Curist, J., concurs.

Sentence reversed, on the law, and case remanded to the

Criminal Term for resentence.