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SUPREME COURT OF NEW YORK, CRIMINAL TERM, KINGS COUNTY 1968.NY.43766 <>; 296 N.Y.S.2d 404; 58 Misc. 2d 526 December 6, 1968 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.LARRY K AND SAMUEL K, DEFENDANTS*FN* Anthony F. Marra and J. Jeffrey Weisenfeld for defendants. Elliot Golden, Acting District Attorney (William I. Siegel of counsel), for plaintiff. John R. Starkey, J. Author: Starkey

John R. Starkey, J.

Author: Starkey

 These two cases heard together although different in detail raise a common question: Is there a right to a trial by jury on a youthful offender information?

These defendants were 16 years of age at the time of their arrest. They were indicted for felonies. They subsequently executed a consent for a prepleading investigation and waived a trial by jury. Thereafter, through counsel, they filed a demand for a jury and later, on November 6, 1968, made the same demand by notice of motion.

The defendants contend that they are entitled to a trial by jury on a youthful offender information. Further, that they did not waive their right and even if they did, they made a timely repudiation.

I will not discuss the propriety of the waiver nor its repudiation since our statute demands that the defendants consent to a prepleading investigation and a trial without a jury, should a trial be had. The sole issue is whether subdivision 3 of section -g and section 913-h of the Code of Criminal Procedure setting forth that if a trial is to be had it will be without a jury, violate the defendants' constitutional rights.

Title VII-B of the Code of Criminal Procedure is entitled "Proceedings Respecting Youthful Offenders". A quick examination of the sections readily discloses the benefit to the "youth" accorded this treatment. It is enough to say that regardless of the outcome, he avoids the stigma of a criminal conviction and all its consequences. However, the according of this treatment to a "youth" is not a right, but a privilege.

Last year the United States Supreme Court decided in the Matter of Gault (387 U.S. 1) that juvenile court proceedings are required to meet constitutional standards of due process as to notice, right to counsel, privilege against self incrimination and the right to confront and cross-examine sworn witnesses. Early this year the United States District Court sitting as a three-Judge statutory court in Nieves v. United States (280 F. Supp. 994) stated that the Federal Juvenile Delinquency Act was unconstitutional to the extent that it required a juvenile delinquent to waive his right to a jury trial in order to be proceeded against under the act. That court relied upon the Matter of Gault (supra). I cannot extend Matter of Gault as the court did in Nieves v. United States (supra). I do not read a mandate of a jury trial in the Matter of Gault ; on the contrary, I am of the opinion that the court expressly excluded same.

The Assistant Attorney General of Arizona in his brief in the Matter of Gault, argued that:

"The Arizona Juvenile Code is constitutional. The function of the juvenile court will be destroyed if injected with the rights of due process as construed in the criminal system.

"Constitutional and legal objections respecting the right to trial by jury, the want of arraignment in plea, the suspending of judgment or sentence, the manner of examination or triial, that the child is required to be a witness against himself, the want of notice to the parent, the dispensing with a warrant and arrest of the child and bringing him before the court, and all like questions have been fully discussed and, in the vast majority of cases, rejected."

So that it can be seen that the question of the jury trial was before the court. At page 13, the court said: "We do not even consider the entire process relating to juvenile 'delinquents'. For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. We consider only the problems presented to us by this case. These relate to the proceedings by which a determination is made as to whether a juvenile is a 'delinquent' as a result of alleged misconduct on his part". The only interpretation I can make is that the court was ruling on the manner in which the trial or proceeding was to be conducted.

At page 14, the court continues: "From the inception of the juvenile court system, wide differences have been tolerated -- indeed insisted upon - between the procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there are rights granted to adults which are withheld from juveniles. In addition to the specific problems involved in the present case, for example, it has been held tha the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury."

On page 19, the court quotes the Chairman of the Pennsylvania Council of Juvenile Court Judges, who said: "Unfortunately, loose procedures, high-handed methods and crowded court calendars, either singly or in combination, all too often, have resulted in depriving some juveniles of fundamental rights that have resulted in a denial of due process."

The court, in a footnote at page 19, quotes the late Chief Justice of the New Jersey Supreme Court: "The indispensable elements of due process are: first, a tribunal with jurisdiction; second, notice of a ...

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