30 A.D.2d 803 | N.Y. App. Div. | 1968
Lead Opinion
Application for an order pursuant to article 78 CPLR, directed to and against the Justices of the Supreme Court of the State of New York, County of New York, denied, without costs or disbursements, and without prejudice to renewal by petitioner of his application for youthful offender treatment without waiving his rights to trial by jury. We fully agree with the reasoning of the dissenting memorandum insofar as it concludes that the
Dissenting Opinion
(dissenting). In my view, the application should not be dismissed but remanded, that respondents may proceed in conformity with the views expressed herein. Petitioner commenced this special proceeding, pursuant to CPLR article 78, for an order directing respondent the Honorable Vincent A. Lupiano, a Justice of the Supreme Court, New York County, to approve petitioner for an examination to determine whether he is eligible for Youthful Offender treatment pursuant to section 913-g of the Code of Criminal Procedure. Petitioner was indicted for robbery in the first degree (two counts), robbery in the second degree (two counts), grand larceny in the third degree (two counts) and possessing a weapon. At the time of his arraignment, before Justice Lupiano, petitioner was 18 years of age. He had no previous convictions. He had been recommended by the District Attorney and by the Grand Jury for investigation for possible Youthful Offender disposition, but he declined to sign the consent for investigation due solely to the provision that he must waive a jury trial, which requirement Mr. Justice Lupiano, found to be constitutional. The court below, acting through Mr. Justice Lupiano, did determine that in all respects, save his refusal to sign the waiver petitioner was eligible for the investigation and that the court would have ordered the investigation had petitioner signed the waiver. Accordingly, the narrow question presented is whether a defendant who is charged with a felony may be precluded from treatment as a Youthful Offender solely because he insists upon a jury trial upon the question of his guilt or innocence. In view of the Supreme Court’s recent application to the States of the Sixth Amendment’s right to a jury trial in cases involving serious crimes (Duncan V. Louisiana, 391U. S. 145) the conclusion is inescapable that the denial of Youthful Offender treatment to petitioner solely because of his refusal to waive a jury trial was constitutionally impermissible. Recent decisions of the United States Supreme Court have explicitly held that Legislatures may not coerce or “ needlessly encourage ” a defendant to waive the exercise of a constitutional right either by granting the defendant a special benefit in consideration for the waiver or by penalizing the defendant for his failure to waive a constitutional right. (Gardner v. Broderick, 392 U. S. 273; United States v. Jackson, 390 U. S. 570; Simmons v. United States, 390 U. S. 377; Garrity v. New Jersey, 385 U. S. 493; Spevack v. Klein, 385 U. S. 511; Griffin v. California, 380 U. S. 609. See, also, Nieves v. United States (280 F. Supp. 994, 1001) a case where a three-Judge Federal District Court, following the rationale of the recent Supreme Court decisions, has squarely held that the Federal Juvenile Delinquency Act; which presents youths with the indentieal dilemma as the New York Youhtful Offender Law, “ penalizes and makes costly the assertion of his Sixth Amendment right to jury trial; therefore it is unconstitutional to the extent that it requires a juvenile defendant to waive his right to jury trial in order to he proceeded against under the Act”. Although treatment as a Youthful Offender is a matter of privilege and not of right we do not in fact here deal with discretionary power because respondent Justice Lupiano, clearly
