Amicus Curiae Brief — In Re WINSHIP (No. 778)

FILE COPY

JOHN F. DAVIS, CLERK

Supreme Court of the United States

OCTOBER TERM, 1969

No. 778

In the Matter of Samue. WinsHIP,

Appellant.

AppeaL From THE Court oF APPEALS OF THE

State or New York

BRIEF OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE

Lovis J. LerKxow!Tz

Attorney General of the

State of New York

Office & P.O. Address

80 Centre Street

New York, New York 10013

SamueL A. HirsHowrrz

First Assistant Attorney General

Maria L. Marcus

Assistant Attorney General

of Counsel

249 Press of Fremont Payne, Inc., 80 Washington St., N. Y.—BOwling Green 9-8153

OR |

TABLE OF CONTENTS

PAGE

EE oA coda as Se phescceseescasces 1

Questions Prosemted ........ccccecccceseceneceeces 2

ee cubes s'seeseascene 2

Pont I—Section 744 of the New York Family Court

Act does not contravene the due process clause

of the Fourteenth Amendment ................. 5

Point II—Section 744 does not violate the equal pro-

tection clause of the Fourteenth Amendment since

the Family Court Act grants to juveniles under

sixteen unique treatment appropriate to their age

and capacity to be rehabilitated ............... 11

EE 5Gh Gh AGN nee hbb4i5nGnaee tn s0s 000000000 14

TABLE oF CASES

Application of Gault, 99 Ariz. 181, 407 P. 2d 760 .... 8

Commissioner of Public Welfare v. Ryan, 238 App.

Dev. GOT (Rat Dems. BOER) on ccccececescvcsccces 9

Comm. of Public Welfare v. Wendtland, 25 App. Div.

ee SE che kcv ack ontnesdcececas 9

Cuecio v. Civil Service Comm., 40 Mise. 2d 345 (Sup.

ee err ere TTT ere re eet 7

Green v. Bd. of Elections, 259 F. Supp. 290 (S.D.N.Y.

i Ussethduueech seh ssdades 665040 ben's ve 8

In re Agler, 19 Ohio St. 2d 70, 249 N. B. 24 808 (Sup.

ceca cca keancak scan sion 8

iu TABLE OF CONTENTS

PAGE

In re Dennis M., 75 Cal. Rep. 1, 450 P. 2d 296 (Sup.

CR OE Gig TUE kaa rsccccinnsccescectancsccs 6

In re Ellis, 253 A. 2d 789 (D. C. Ct. of App., 1969) ..

Martin v. Lane, 57 Misc. 2d 4 (Family Ct, Dutchess

Ces TERED wwinscnnvvaccsccnvcveutivisicetnt )

McGowan v. Maryland, 366 U. S. 420 (1961) ........ 13

Matter of Arenas, 453 P. 2d 915 (Sup. Ct. of Oregon,

BR whe dis cc 6Uencddes Check ae. sOeeNEa 5, 6, 13, 14

Matter of Gault, 387 U. S. 1 (1967) ................ 6, 1

Matter of Gray v. Rose, 30 App. Div. 2d 138 (3rd

Re TD Sinn Cheba en CD ies Cae Cas g

Murphy v. City of New York, 273 App. Div. 492 (1st

DU AEE Ke KRARORAKECAASASAD RO RDNEERORAAEN 7

People v. Chait, 7 App. Div. 399 (1st Dept. 1959),

CP 8,9

People v, Weiss, 19 App. Div. 2d 900, 244 N.Y.S. 2d

SE SE. SEED Kens ch cccacececdccaccsussan 9

Rex v. Summers, 1 All. E. R. 1059 (C. Cr. A. 1952) .. 10

State v. Santana, 444 S. W. 2d 614 (Sup. Ct. of Texas,

BED Sede cnccbiwenscudiadsccdsnG cca cncssens 8

Strong v. Kennedy, 29 Mise. 2d 54 (Sup. Ct., N. Y.

SEE A nits shaigdaivnheds cue bsbicaicanteithtece 7

Thompson v. Louisville, 362 U. S. 199 (1960) ....... 9

U. S. ex rel Brennan v. Fay, 353 F. 2d 56 (2d Cir.

ETE PPE LT ee TT CT ETE Tee Pe TPP eEe ety 9

U. S. ex rel. Morton v. Mancusi, 393 F. 2d 482 (2d

PGE ee yee She Terr reer re ere ers 9

Walters v. City of St. Louis, 347 U. S. 231 (1954) ... 2

I

_ ——

TABLE OF CONTENTS iii

StTaTuTEs

PAGE

N. Y. Code of Crim. Proe.:

DEED ( ne4 00s ebekandncce assis ckabames 12

N. Y. Election Law:

De Shbaudiwestubhien 4adaekeckces Ciba cee 8

DM cpudueedebeschhake Sikes kts pee cic.

New York Executive Law:

SE WAhs bACEA Gees KdbtCka dws eiabak kee cae 1

See Shaina ducts kee Ora wckee dace oe eed 1

N. Y. Family Court Act:

ENE bie accVikinnbawekskinn beiks dee cent 7

iv TABLE OF CONTENTS

AUTHORITIES

Wigmore on Evidence, Third Edition (1940), Vol. IX,

ES Wn TD Ava vcsseccsncccvscneseencs

G7 Col. La. Rev. 261 (19GB) 2... ce cece cece ese e ccs

Task Force Report, Juvenile Delinquency and Youth

ED 05 Nandan eGw so 60 reannees bs ea wene

Wigmore on Evidence, Third Edition (1940), Vol. IX

RUM 6 ou oS en Seem cecbaensebies Saves

IE os ons. c0ctibce beiaeucd sink

_

Supreme Court of the United States

OCTOBER TERM, 1969

No. 778

+

vv

In the Matter of Samue, WinsuHrP,

Appellant.

AppEAL From THE Court oF APPEALS OF THE

State or New York

4

is

BRIEF OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE

Statement of Interest of the Attorney General

of the State of New York

This case involves the constitutionality of § 744(b) of the

Family Court Act, which provides that any determination

ina Family Court fact-finding hearing that a juvenile

committed certain acts, must be based upon a preponder-

ance of the evidence. This rule is in harmony with the civil

nature of Family Court proceedings, which seek to re-

habilitate children rather than to punish offenders.

As the chief legal officer of the State (New York Execu-

tive Law, § 63), the Attorney General is charged with the

defense of enactments of our State Legislature (Executive

Law, §71). The Attorney General’s concern is the pres-

ervation of the civil character of hearings and dispositions

in the Family Court.

2

Questions Presented

1. Does the requirement in the New York Family

Court Act that any determination at the conclusion of g

fact-finding hearing that a juvenile committed an act or

acts must be based on a preponderance of the evidence,

raise an issue under the due process clause of the Four.

teenth Amendment or deny to juveniles due process of

law?

2. Does separate treatment for children under 16 in the

New York Family Court create an invidious distinction

in violation of the equal protection clause of the Four.

teenth Amendment, where all due process rights of such

juveniles are preserved?

Statement of the Case

Appellant was charged with juvenile delinquency for

an alleged act of larceny, in a petition filed in New York

Family Court on March 30, 1967. The fact-finding hear.

ing on this charge was conducted on March 30, 1967 be

fore the Hon. Millard Midonick. Appellant was repre

sented by an attorney from the Legal Aid Society.

The Evidence:

The petitioner in the Family Court proceeding was

Rae Goldman, a saleslady at a furniture store in the

Bronx, New York (4). On March 28, 1967, at 6:15 in

the evening petitioner was informed by a co-worker that

the door to a small bathroom adjoining the locker room

was locked (5). They waited to see who would emerge

from the bathroom, and after a few moments appellant

came out and ran from the store (5). Mrs. Goldman

* References are to page numbers in appellant’s Appendix.

OU

3

rushed to see if her handbag, which had been left in the

locker room at 5:30, was still there (5, 8). The handbag

had disappeared, and was later found on the bathroom

floor with the contents scattered and $112.00 of petition-

er’s money missing (5, 6). There were no customers in

the store at the time, as it was the dinner hour; only two

other employees were present (7).

Petitioner called the police, and described the boy to

Patrolman Clarke as wearing a coat with a fur collar,

glasses and a leather cap (10, 18, 19, 21). She had seen

the boy not only when he ran out of the store (it was still

daylight at the time), but had also seen him on at least

6 prior occasions ‘‘sneaking around and prowling around

the store’ (6, 7). He always carried a little shoe box

with him and had once shined her shoes in the store (7).

Patrolman Clarke then testified that at about 8:30 P.M.

on March 29, 1967 (the night following the theft of Rae

Goldman’s handbag), he found appellant trespassing in

a bakery at East Fordham Road, less than 4 blocks from

the store where Mrs. Goldman works (21-23). At the

time he was apprehended, appellant had a shoe shine kit

and two rolls of dimes totalling $10.00 (23). Appellant’s

counsel stated in connection with these dimes:

‘“‘The boy said that he did not enter the premises of

the bakery shop with the intent to commit a crime

therein. He often went into the store to give shoe

shines to the owner. When he went in, he saw the

money lying on an open safe. He took the dimes to

give to the clerk of the store and to tell the clerk that

the money was not safe there.’’ (30)

The Court Probation Officer informed the Court that at

that time appellant, a twelve-year-old boy, was a parolee

from a training school, his parole having been extended

for 1 year as of 2/28/67. He had been sent to the train-

ing school for setting a fire and for burglary (30, 31).

a

4

Appellant’s mother testified that her son left the house

at about 3 or 4 o’clock on March 28, 1967 to go bicycle

riding with his sister. He returned a little after 5:9

and they had dinner at 6:00 (11). In the evening he

watched television with his father and did not leave the

house (21).

Melvin Coleman, appellant’s uncle, stated that he and

appellant had eaten dinner together with appellant's

mother every night on the week in question (16). How.

ever, after Patrolman Clarke testified that he had caught

appellant on Wednesday evening in the bakery, the wit.

ness was recalled and testified that he had eaten with the

family only on Monday and Tuesday (26).

Appellant testified that he had gone bicycle riding with

his sister on March 28, 1967, after which he had returned

home for dinner and stayed there to watch television

(18).

Appellant denied ever having seen Mrs. Goldman be.

fore she appeared in the police station, denied ever hay-

ing been inside the furniture store and denied ever hay.

ing shined Mrs. Goldman’s shoes (18). He did not ex.

plain how Mrs. Goldman had known that he wore a

leather cap, a coat with a fur collar and glasses (18).

Decision of the Family Court:

At the conclusion of the hearing the Court ruled that

‘*the testimony and description of the petitioner was very

accurate and the demeanor of the petitioner impressed

the Court and her previous knowledge of the boy did as

well’? (27). The Judge stated that he was ‘‘convinced

of the facts alleged’’ (28).

a)

POINT I

Section 744 of the New York Family Court Act does

not contravene the due process clause of the Four-

teenth Amendment.

The crux of appellant’s argument appears to be that

since a possible outcome of a Family Court adjudication

is detention for rehabilitative treatment, the standard of

proof used in juvenile delinquency proceedings must be

that of ‘‘reasonable doubt’’ and that, therefore, Section

744(b) of the Family Court Act is unconstitutional (Br.,

p. 12). At the same time, appellant himself points out

(Br., pp. 29-30) that Section 713 of the Family Court Act

grants jurisdiction over ‘‘persons in need of supervision’’,

where a child is shown to be ungovernable or beyond the

lawful control of his parents. Detention of such persons,

where rehabilitation is needed, is authorized under Sec-

tions 754 and 756 of the Family Court Act. There is, of

course, no need under the latter sections for a finding

under the reasonable doubt standard. Yet appellant re-

fers to this procedure with approval, recognizing that a

child ‘‘might be engaging in a general course of conduct

inimical to his welfare which calls for judicial interven-

tion. ..’’ (Br., pp. 29-30). Appellant also refers to other

instances where detention or serious disabilities are gov-

erned by a civil standard of proof—commitment to mental

institutions or civil narcotic facilities (Br., p. 25).

Thus, appellant’s own brief underlines the fact that

there is neither a necessary nor a logical relationship be-

tween standard of proof and the possibility of subsequent

detention. Indeed, several courts have pointed out that to

impose the reasonable doubt standard in juvenile courts

would be contradictory to the duty of such courts to inter-

vene while the troubled child is still at a receptive age.

This analysis is well set out in Matter of Arenas, 453

P, 2d 915 (Sup. Ct. of Oregon, 1969). Oregon law, like

a

6

New York law, empowers the Juvenile Court to act both

in cases where the child commits an offense which would

constitute a violation of law if committed by an adult, and

in cases where a child is beyond parental control or ep.

dangering himself and others. The court ruled:

‘“‘Tf the Constitution is held to prohibit the Juvenile

Court from depriving a juvenile of his freedom unless

it is proved beyond a reasonable doubt that he com.

mitted a criminal act, the constitution would have to

be interpreted to prohibit depriving a juvenile of his

freedom when he was found to have engaged in con.

duct not amounting to a crime.

The logical end of such reasoning would be the con.

clusion that regardless of how apparent the need for

intervention for the good of the child, the community,

the judiciary and every other institution or agency

would be powerless to act until and unless criminal

conduct could be proved beyond a reasonable doubt.

We are of the opinion that such a result is not a re.

quirement which logically extends from Gault [387

U. 8. 1]. The direct holding and firm implication of

Gault is that in order for the Court to acquire juris.

diction some proscribed conduct must be proved and

the procedures for proving such conduct must include

notice, right of counsel, right to confrontation and

cross-examination and the privilege of self incrimina-

tion.’’

See in accord In re Dennis, M., 75 Cal. Rep. 1, 450 P. 2d

296 (Sup. Ct. of Calif., 1969); In re Ellis, 253 A. 2d 789

(D. C. Ct. of App., 1969).

This court’s decision in Matter of Gault, 387 U. S. 1,

10-11 (1967), explicitly avoided passing upon the issue of

quantum of proof. At the same time it made clear that

juvenile proceedings must accord fundamental fairness to

young offenders. This fundamental fairness has been

scrupulously preserved in the New York Family Court.

—

7

Right to counsel and notice is guaranteed. (See $§ 241-

249, 736, 737, 741.) Evidence must be competent and rele-

vant (§§ 744, 745).

The post-adjudicatory process is predicated upon the

child’s needs and his capacity to change. Placement of a

child in a training school does not involve a minimum term

of retention. Thus, it resembles the civil commitment of

a mentally ill person, and is totally unlike the imprison-

ment of an adult.

The civil nature of these training schools is character-

ized by an open setting without the restraints of locks or

bars.* The cottage unit system which is generally used

is made up of semi-independent groups, many of which

are limited to 20 young people. House parents live on the

premises and act as guides and mentors, as well as super-

visors. Home visits are made by the boys and girls on a

regular basis, and vocational and academic features are

provided. (See Schools and Centers for Children with

Problems, New York State Department of Social Services.)

No collateral disabilities follow an adjudication of

juvenile delinquency. Sec. 782, Family Court Act. For im-

peachment purposes, a finding of delinquency is not a

“prior conviction’’. Sec. 783, Family Court Act; Murphy

v. City of New York, 273 App. Div. 492 (1st Dept. 1948).

Nor may such adjudication be a bar to a position in civil

service or to the receipt of a license. Sec. 782, Family

Court Act; Cuccio v. Civil Service Comm., 40 Misc. 2d 345

(Sup. Ct., N. Y. Cty. 1963).** A youth may tell a pros-

*One annex at Goshen, New York is an exception and pro-

vides some security precautions for juveniles who have demon-

strated that they would harm themselves or others seriously unless

they are restrained.

** The earlier case of Strong v. Kennedy, 29 Misc. 2d 54 (Sup.

Ct. N. Y. Co. 1961), cited by appellant at p. 23 does not support

appellant’s point. Indeed, the Court pointed out that Section 84 of

the former Domestic Relations Court Act forbids that a delinquent’s

adjudication operate as a forfeiture of any right to public office and

points out that such a forfeiture would be against public policy.

—

pective employer that he has never been adjudicated ,

delinquent. 67 Col. L. Rev. 281, 291, n. 57 (1968). The

right to vote is also specifically preserved. See, New Yor

Election Law, Sections 152, 154; Green v. Board of Elec.

tions, 259 F. Supp. 290 (S.D.N.Y. 1966).

The emphasis upon the need for treatment rather thay

a criminal act is also underscored by the fact that no child

can be detained or even kept under supervisory jurisdic.

tion if it is determined at the dispositional hearing (which

succeeds the fact-finding hearing) that he is not in nee

of care or treatment. It is interesting to note that appel.

lant commends as appropriate (Br., p. 28) the preponder.

ance of the evidence standard at this stage, again recogniz.

ing the importance of judicial intervention where necessary,

Thus the Family Court Act, in both the sections relat.

ing to juvenile delinquency and the inter-related sections

dealing with ‘‘persons in need of supervision’’, demon.

strates that its primary concern is serving the needs of

the child. The possibility of detention therefore cannot

be a basis for mandating the criminal law standard of

reasonable doubt in such proceedings.

In other contexts, the New York courts have not re.

garded the phrase ‘‘preponderance of the evidence’? as

excluding a construction requiring ‘‘clear and convicing

evidence’’.* For example, in discussing State coram nobis

hearings, Judge Botein held in People v. Chait, 7 App. Div.

399 (1st Dept., 1959), aff’d. 6 N. Y. 2d 855 (1959) :

‘‘Once a hearing is granted * * * the petitioner

has the burden of proving deprivation of his consti-

* The standard of “clear and convincing evidence” was adopted

y the Supreme Court of Arizona in Application of Gault, 99 Ariz

181. 407 P. 2d 760, and left undisturbed by y a et ee

the decision. See also Jn re Agler, 19 Ohio St. 2d 70, 249 N. E.

808 (Sup. Ct. of Ohio, 1969) ; State v. Santana, 444 S. W. 2d 614

(Sup. Ct. ‘of Texas, 1969).

tutional rights * * * His contentions must be estab-

lished clearly and convincingly, by a preponderance of

the credible evidence * * *’’

See also, United States ex rel. Brennan v. Fay, 353 F. 2d

56 (2d Cir., 1965), reviewing the Chait case; People v.

Weiss, 19 App. Div. 2d 900, 244 N.Y.S. 2d 914 (2d Dept.,

1963).

The ‘‘clear and convincing’’ measure of proof was also

created by judicial construction as to filiation cases under

Article 5 of the Family Court Act. See e. g. Commissioner

of Public Welfare v. Ryan, 238 App. Div. 607 (1st Dept.,

1933); Commissioner of Welfare v. Wendtland, 25 App.

Div. 2d 640 (1st Dept., 1966); Martin v. Lane, 57 Misc. 2d

4 (Fam. Ct., Dutchess Cty., 1968) ; Matter of Gray v. Rose,

30 App. Div. 2d 138 (3rd Dept. 1968).

B. It is not surprising that this Court has never de-

clared that the measure of persuasion is an element of

due process under the Fourteenth Amendment. This is

consistent with the refusal to review the quantity (as op-

posed to the quality or admissibility) of evidence on

direct appeal or collateral attack on a judgment. Thomp-

son v. Louisville, 362 U. S. 199 (1960); United States ex

rel. Morton v. Mancusi, 393 F. 2d 482 (2d Cir. 1968).

Indeed, terminology relating to quantity of evidence and

measure Of proof has frequently been criticized as un-

helpful and unrealistic. As pointed out in Wigmore on

Evidence, Third Edition (1940), Vol. IX, Section 2497,

p. 225:

“The truth is that no one has yet invented or dis-

covered a mode of measurement for the intensity of

human belief . . . if this truth be appreciated, Courts

will cease to treat any particular form of words as

necessary or decisive in the law for that purpose. . .”’

10

The English rule is referred to in Rex v. Summers,

1 All. E. R. 1059, 1060 (C. Cr. A. 1952):

**T have never yet heard any court give a real def.

nition of what is a ‘reasonable doubt’, and it would

be very much better if that expression was not used,”

This appears to be the reason why Wigmore on Ey.

dence, Third Edition, supra, Section 2498, p. 327 opposes

the extension of the reasonable doubt standard to cases

where it has heretofore not applied:

‘* . . [T]he chief topic of controversy has been

whether in certain civil cases the measure of persua-

sion for criminal cases should be applied. Policy

saggests that the latter test should be strictly con.

fined to its original field, and that there ought to be

no attempt to employ it in any civil case.

It is sometimes said that in general, wherever ina

civil case a criminal act is charged as a part of the

case, the rule for criminal cases should apply; but

this has been generally repudiated.’’ (Emphasis in

original.)

From a realistic standpoint, there seems to be little

basis for declaring any particular measure of persuasion

to be an indispensable element of due process and to dis

turb and alter the historical development of the stand.

ards in juvenile courts, where decisions are made by expe

rienced judges rather than by juries. The factor which is

significant is that the state continues to bear the burden

of proof, and that evidence to be adduced be competent

and reliable.

The instant case illustrates this point. Appellant’:

mmission of the act charged was clearly and convine

ingly proven. The saleslady whose handbag was stole

had left the bag im a lecker room adjoining a small batb-

——7—7—~"”—"

ll

room. Appellant was seen running out of the bathroom,

in which he had locked himself, where moments later the

handbag was found with its contents scattered and the

money missing. At the time, there were no customers in

the store.

Not only did the saleslady recognize the boy, who had

been in the store on at least six prior occasions and had

shined her shoes, but she also described to the police the

coat with the fur collar, leather cap and glasses which ap-

pellant wears. Appellant’s uncle who testified for him as

a witness contradicted himself and offered completely un-

convincing evidence. The Court pointed out that ‘‘the

testimony and description of the petitioner [saleslady ]

was very accurate and the demeanor of the petitioner im-

pressed the Court and her previous knowledge of the boy

did as well.’? While the judge stated that he was using

preponderance of the evidence as a basis for his finding,

he also made clear that he was ‘‘convinced of the facts

alleged’’ (28).

POINT II

Section 744 does not violate the equal protection

clause of the Fourteenth Amendment since the F amily

Court Act grants to juveniles under sixteen unique

treatment appropriate to their age and capacity to be

rehabilitated.

Appellant asserts that although this Court’s decision

in Gault was based upon a denial of due process, there

was an implicit reliance upon the equal protection clause

of the Fourteenth Amendment as well, in that this Court

wished to accord to juvenile offenders certain critical

safeguards which are guaranteed for adult criminals.

However, as pointed out by appellant himself, there are

numerous substantial differences in New York’s proce-

dure for adult and child offenders which afford special

treatment to the latter group.

ee ee

12

Appellant’s brief (pps. 26-28) contains a catalogue of

the unique aspects of the pre-judicial or ‘‘intake’’ phage

(Family Court Act § 734). Regardless of whether or not

the child has committed an act which would constitute g

crime if committed by an adult, the case may be adjusted

so that he never comes to court at all.

There are differences in the fact-finding hearing as well.

Decisions are made by judges who are experts in the field,

not by juries. And under 4762, the Court may on its

own motion or on the motion of any interested person

vacate any order issued in the course of a proceeding

under Article 7. Sections 753-756 confer a broad range

of further powers upon the Juvenile Court judge. Under

§716, he may change a petition alleging juvenile delin-

quency to one alleging that a child is a ‘‘person in need

of supervision’’.

The mandatory secrecy in the proceedings which must

be accorded to all children (contrast the discretionary

Youthful Offender provision, §913[g] of the N. Y. Code

of Crim. Proc.) and the collateral consequences of a de

linquency adjudication have already been described in

Point I(A) supra.

Of equal significance is the dispositional hearing which

succeeds the fact-finding hearing. If a child needs no

eare or treatment, the petition against him is dismissed

at the dispositional stage. Appellant incorrectly states

that ‘‘such a disposition is precisely like a suspended sen-

tence in a criminal case’’ (Br., p. 28). Such a dismissal

means that the child has not been found delinquent. More

over, while a suspended sentence in a criminal case can

be imposed under certain conditions, a dismissal at a dis-

positional hearing constitutes an unconditional discharge.

It is also important to remember that the child is cor-

rectly viewed by the public as in a different category from

those over sixteen; his acts are taken less seriously in that

-

13

he is regarded as needing assistance rather than as a

wer

As can be seen, differences in the treatment of children

in the Family Court vis-a-vis adults in the Criminal Courts

are advantageous to the child offender. Apparently appel-

lant does not dispute this fact, but contends that the pre-

adjudicatory and post-adjudicatory phases should not be

considered in determining the measure of proof under

§ 744(b).

However, it is impossible to isolate the dispositional hear-

ing and the purposes of the Family Court Act from the

proponderance of the evidence standard. The equal protec-

tion clause which appellant invokes does not require iden-

tity of treatment. Walters v. City of St. Louis, 347 U. S.

231, 237 (1954). As this Court made clear in McGowan v.

Maryland, 366 U. S. 420, 425 (1961):

“The constitutional safeguard is offended only if

classification rests on grounds wholly irrelevant to the

achievement of the State’s objective.’’

The objective of Article 7 of the Family Court Act is to

allow necessary judicial intervention while the character

of a child is still in the process of formation. With the

adult offender there is, of course, always the hope that de-

tention will have a rehabilitative effect. However, the

criminal law is predicated upon the commission of certain

acts and a prescribed punishment for those acts. By con-

trast, judicial supervision over a child is based upon a

demonstrated need for psychological assistance.

That this purpose is a valid one has been attested by

experts in the field. As the Court noted in State v. Arenas,

supra, 453 P. 2d at 920:

“The theory that some agency should have the power

to intervene with juveniles when they have engaged in

conduct indicating the need for such intervention has

14

substantial and respected backing from social and be

havioral scientists.’”” Task Force Report, Juvenil

Delinquency and Youth Crime [The President’s Com.

mission on Law Enforcement and Administration of

Justice] at pp. 22-28 [1967].

CONCLUSION

For all the foregoing reasons, the decision below

should be affirmed.

Dated: New York, N. Y., January 8, 1970.

Respectfully submitted,

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Respondent

Samvue. A. HimsHowrrTz

First Assistant Attorney General

Maria L. Marcus

Assistant Attorney General

of Counsel

In THE

Supreme Court of the United States

October Term, 1969.

No. 778

ae

In the Matter of

SamMveL WInsHr,

Appellant.

‘WITZ

of the APPEAL FROM THE COURT OF APPEALS OF THE

vork STATE OF NEW YORK

ondent

SSaeieninaanie

-

APPELLANT’S REPLY BRIEF

Rena K. Uviuer

Wurm EF. HEvierster

The Legal Aid Society

119 Fifth Avenue

New York, New York 10003

Counsel for Appellant

Of Counsel :

Cartes SCHINITSKY

In THE

Supreme Court of the United States

October Term, 1969.

No. 778

~<

In the Matter of

Samve. WInsHrP,

Appellant.

APPEAL FROM THE COURT OF APPEALS OF THE

STATE OF NEW YORK

——»—

APPELLANT’S REPLY BRIEF

(1)

Appellee suggests that appellant did not face a six-year

confinement because section 758(c) of the New York Family

Court Act provides that a “commitment” may not exceed

three years. [Appellee’s Brief, p. 1, n. 1.] Appellee has

seemingly confused the difference between a “placement”

and a “commitment” of a delinquent under the New York

statute. [See also, Appellee’s Brief, p. 22, n. 5.] They are

two separate and distinct dispositions. Fam. Cr. Act,

§753(b) ; §753(d). While a commitment is limited to three

years [F'am. Cr. Act, $758(c)], section 756 of the statute

provides with regard to placements that:

(b) Placements under this section may be for an initial

period of eighteen months and the court in its disere-