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PEOPLE STATE NEW YORK v. JOHN ALLEN (07/02/68)

COURT OF APPEALS OF NEW YORK 1968.NY.42496 <http://www.versuslaw.com>; 239 N.E.2d 879; 22 N.Y.2d 465 decided: July 2, 1968. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.JOHN ALLEN, APPELLANT; THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V. JOHN FULLER, APPELLANT; THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V. JOAN KLEIN, APPELLANT Appeal, in the first above-entitled action, by permission of the Chief Judge of the Court of Appeals, from a judgment of Appellate Term of the Supreme Court in the Second Judicial Department, entered November 1, 1967, affirming a judgment of the Criminal Court of the City of New York (Anthony Maglio, J., at time of conviction; Albert S. McGrover, J., at time of sentence), rendered in Kings County, adjudicating defendant-appellant to be a wayward minor and sentencing him to the Elmira Reception Center. Counsel Leon B. Polsky and Anthony F. Marra for appellant in the first above-entitled action. Aaron E. Koota, District Attorney (Raymond J. Scanlan and Harry Brodbar of counsel), for respondent in the first above-entitled action. Counsel Leon B. Polsky and Anthony F. Marra for appellant in the second above-entitled action. Counsel Aaron E. Koota, District Attorney (Raymond J. Scanlan and Harry Brodbar of counsel), for respondent in the second above-entitled action. Counsel Leon B. Polsky and Anthony F. Marra for appellant in the third above-entitled action. Counsel Aaron E. Koota, District Attorney (Harry Brodbar of counsel), for respondent in the third above-entitled action. In People v. Allen : Chief Judge Fuld and Judges Burke, Keating, Breitel and Jasen concur with Judge Bergan; Judge Scileppi concurs solely upon the District Attorney's recommendation. In People v. Fuller and People v. Klein : Chief Judge Fuld and Judges Burke, Keating, Breitel and Jasen concur with Judge Bergan; Judge Scileppi dissents and votes to affirm in a separate opinion. Author: Bergan


Appeal, in the first above-entitled action, by permission of the Chief Judge of the Court of Appeals, from a judgment of Appellate Term of the Supreme Court in the Second Judicial Department, entered November 1, 1967, affirming a judgment of the Criminal Court of the City of New York (Anthony Maglio, J., at time of conviction; Albert S. McGrover, J., at time of sentence), rendered in Kings County, adjudicating defendant-appellant to be a wayward minor and sentencing him to the Elmira Reception Center.

In People v. Allen : Chief Judge Fuld and Judges Burke, Keating, Breitel and Jasen concur with Judge Bergan; Judge Scileppi concurs solely upon the District Attorney's recommendation. In People v. Fuller and People v. Klein : Chief Judge Fuld and Judges Burke, Keating, Breitel and Jasen concur with Judge Bergan; Judge Scileppi dissents and votes to affirm in a separate opinion.

Author: Bergan

 These three cases, heard together although differing in details, have a common question: What constitutes moral depravity or the "danger of becoming morally depraved" within the wayward minor provisions of subdivisions (5) and (6) of section 913-a of the Code of Criminal Procedure?

Appellants attack the constitutionality of the statute for vagueness and for opening the possibility of conviction and a penal-type method of correction for persons between 16 and 21 on standards which, for an adult, would not be sufficiently definite as to exactly the kind of conduct which would lead to correction.

The court, as recently as 1966, has sustained the constitutionality of the statute (People v. Salisbury, 18 N.Y.2d 899) against the argument that "morally depraved" was too vague a statutory prescription (p. 900); and for the reasons which are developed here leading to reversal of these convictions on the merits it is unnecessary to reconsider the constitutional issue.

A person adjudged a wayward minor may be committed to a "reformative institution" (Code Crim. Pro., § 913-c), subject to release therefrom as in the case of "adult" offenders (Code, § 913-d), and these include Elmira Reception Center (Correction Law, § 61) or Elmira Reformatory (id., § 64).

The year after Salisbury was here, the Supreme Court decided Matter of Gault (387 U.S. 1 [1967]) holding a juvenile delinquent in a Juvenile Court in Arizona was entitled to due process substantially similar to that which would underlie criminal charges against an adult. (See, also, Specht v. Patterson, 386 U.S. 605 [1967]).

It seems fair to read Gault as Justice Stewart described it in dissent, that it tended to impose on juvenile courts the "restrictions that the Constitution made applicable to adversary criminal trials" (p. 78).

To be consistent, this procedural requirement should apply as well to the substantive definition of acts committed by juveniles which are made the subject of corrective or penal discipline.

It is true, of course, as the People argue, that the protection of the young permits some variation in statutory and other legal arrangements affecting them. Obscenity in its impact on children is one example (Ginsberg v. New York, 390 U.S. 629, [1968]; Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 75, app. dsmd. sub nom. Bookcase, Inc. v. Leary, 385 U.S. 12; People v. Kahan, 15 N.Y.2d 311, 312). But, as the court held in People v. Munoz (9 N.Y.2d 51, 60), an act made an offense for a juvenile and not for an adult is open to attack as discriminatory.

Some guidance on the general sufficiency of "morally depraved or is in danger of becoming morally depraved" (§ 913-a, subds. [5], [6]) is possible by reading Giaccio v. Pennsylvania (382 U.S. 399 [1966]) where the statute prohibiting the discharge of firearms at another person permitted the jury to assess costs against the accused, even if acquitted, under some circumstances from which the jury might infer misconduct.

The trial court, in interpreting the statute, charged this could be done if the jury, acquitting defendant on the crime charged, nevertheless found defendant guilty of misconduct "of some kind as a result of which he should be required to pay some penalty" (p. 404). This was held too vague to justify even the imposition of costs (see opn., Black, J., 382 U.S. 399, 404).

The decision of this court invalidating the vagrancy statute (Fenster v. Leary, 20 N.Y.2d 309 [1967]) throws collateral light on some theoretical aspects of the present cases. See, also, on this point People v. Munoz (9 N.Y.2d 51, supra).

Although, as it has been noted, it is unnecessary to reconsider the general validity of the statute or presently overrule Salisbury, in view of the tightening of due process requirements in this type of juvenile proceeding authorizing the judicial option of confinement in institutions which serve also for the treatment of persons convicted of felony, particular care should be taken that the charge has substance based on acts which point to grave danger to youth and is not merely a compliance with form; and ...


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