1 A.D.2d 226 | N.Y. App. Div. | 1956
Appellant, having been indicted in Queens County, has been adjudicated a youthful offender, after a trial, on a superseding information charging, insofar as it is now pertinent, that he was a youthful offender in that he carried and possessed a sawed-off shotgun with intent to use it unlawfully against another. The judgment against him rests solely upon his admission to a police officer before his arraignment
The District Attorney asserts that appellant’s guilt of the offense charged against him was sufficiently established by his voluntary admission, and that section 395 of the code has no application, because appellant was not convicted of a crime.
We are unable to agree with the learned District Attorney in his interpretation of the law. We do not doubt the beneficent purpose of the youthful offender statutes (Code Crim. Pro., tit. VII-B; §§ 913-e-913-r), which expressly provide that no youth shall be denominated a criminal by reason of an adjudication that he is a youthful offender, and that such a determination shall not be deemed a conviction (Code Crim. Pro., § 913-n). The fundamental point, however, with respect to such an adjudication, is that it may be made only in a criminal action, and may not be made unless it be found that the defendant, so adjudged, has committed a crime (Code Crim. Pro., § 913-e). The adjudication may only follow an indictment found or an information laid in a court of criminal jurisdiction. The youth accused of the offense is required to plead guilty or not guilty to the charge made against him (Code. Crim. Pro., § 913-g). If a plea of not guilty is entered the adjudication may be made only after a trial at which it must be found that the defendant committed the acts charged against him in the indictment or information (Code Crim. Pro., §§ 913-h, 913-j). Those facts, in our opinion must be proved in the same way as if the charge were made against an adult, by competent and sufficient evidence. (People v. Fitzgerald, 244 N. Y. 307.)
What was said in the Fitzgerald case, is, in our opinion, pertinent here. Whether a defendant is prosecuted on an indictment, or tried as a youthful offender, the acts to be proved remain the same, and proof of the acts is equally necessary whether the determination to follow is to be called a conviction or an adjudication. As we read the applicable statutes, proof which is insufficient to sustain a conviction in the one case is equally insufficient to sustain what is called an adjudication in the other. (Code Crim. Pro., §§ 395, 913-e, 913-j, 913-q.)
Lewis, the so-called defendant in “ People v. Lewis ” was adjudged a delinquent child in Children’s Court, on his own statement, made before the Children’s Court Judge, that he had broken into a store in Binghamton, stolen money, and thereafter was involved in the theft of three automobiles. In the Appellate Division (235 App. Div. 559) the judgment against him was reversed on the ground that it was supported by no evidence received in his presence except his uncorroborated admission, and because he was not advised of his constitutional rights to counsel and to refrain from testifying against himself. In the Court of Appeals, the question of the necessity for corroborating evidence was disposed of summarily by the statement at page 174 that: 1 ‘ Even in a criminal trial the confession which requires corroboration to sustain conviction is only the extra judicial confession, not the admission made in open court on the witness stand. (16 C. J. 735, § 1514.) If the hearing here had been a criminal trial, its sole defect would have been the failure to warn against self-incrimination. But it was not a criminal trial and there was no defect.”
In distinguishing the Fitzgerald case (supra) the Court of Appeals pointed out that the proceedings under the Buffalo Children’s Court Act there involved were similar to those under section 486 of the Penal Law, stating at page 175: “ As the
“ So much has been written, judicially and extrajudieially, about the sociological and legal aspects of juvenile delinquency, and about the public policy which underlies such statutes as the one in question, that a detailed discussion here would be trite. For the purposes of this case, the fundamental point is that the proceeding was not a criminal one. The State was not seeking to punish a malefactor. It was seeking to salvage a boy who was in danger of becoming one. In words which have been often quoted, ‘ the problem for determination by the judge is not, Has this boy or girl committed a specific wrong, but What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.’ (23 Harvard Law Review, 104, 119, 1 The Juvenile Court,’ by Julian W. Mack.)
“ The evidence of his specific acts was relevant as an aid in answering those questions. Since the proceeding was not a criminal one, there was neither right to nor necessity for the procedural safeguards prescribed by constitution and statute in criminal cases.”
The distinction between the Fitzgerald case and the Lewis case is manifest. As was said in Matter of Clausi (296 N. Y. 354, 356): “ The Leiois case is illuminative. We there held that, while a juvenile delinquent proceeding commenced in a children’s court under the Children’s Court Act is noncriminal, it is to be regarded as ‘ criminal ’ if instituted in a tribunal vested with 1 criminal jurisdiction ’ — such as, for example, the Buffalo City Court or the New York City Special Sessions Court. (See People v. Lewis, supra, pp. 174-176, 177, 178;
In accordance with the foregoing, the judgment must be reversed, but the charge against appellant should not be dismissed. If sufficient evidence is available to support the charge, the People should have an opportunity to produce it.
The judgment should be reversed on the law and a new trial ordered. In view of the determination that the evidence is insufficient, as a matter of law, the findings of fact have not been considered.
No separate appeal lies from the intermediate orders, which have been reviewed on the appeal from the judgment.
Wenzel, Beldock, Murphy and Hallinan, JJ., concur.
Judgment of the County Court, Queens County, reversed on the law and a new trial ordered. In view of the determination that the evidence is insufficient, as a matter of law, the findings of fact have not been considered.
No separate appeal lies from the intermediate orders, which have been reviewed on the appeal from the judgment.