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COUNTY COURT OF NEW YORK, FRANKLIN COUNTY 1969.NY.43451 <>; 305 N.Y.S.2d 316; 61 Misc. 2d 180 November 7, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.LARRY WAGNER JUDD, DEFENDANT Owens D. Grogan, District Attorney, for plaintiff. Cantwell & Cantwell (Paul M. Cantwell, Jr., of counsel), for defendant. Ellsworth N. Lawrence, J. Author: Lawrence

Ellsworth N. Lawrence, J.

Author: Lawrence

 The question here is whether an indicted defendant, under 19 at the time of the commission of the alleged crime, may apply to be considered for youthful offender treatment without a recommendation therefor from the Grand Jury or the District Attorney, and against the District Attorney's objection.

As the statute (Code Crim. Pro., § 913-g) also authorizes the court, on its own motion, to decide whether a defendant be investigated for the purpose of determining eligibility, the present application must be considered as an application to the court to order such an investigation on its own motion.

There is no statutory authority in the Youthful Offender Law (Code Crim. Pro., § 913-e et seq.) for an application by a defendant for treatment as a youthful offender. Indeed, it has been held in People v. Hines (24 Misc. 2d 484) that no "vehicle" was provided in such law to stimulate the exercise of the court's discretion. The court suggested there that any such relief should come from the Legislature and not from the courts.

It is clear that such statement in Hines was dicta because no recommendation or any application had been made there prior to conviction. The issue was raised thereafter by coram nobis on the claim that through "oversight", the defendant had not been given an opportunity to be treated as a youthful offender. Hence the affirmance on appeal of the denial of coram nobis relief necessarily was predicated on a determination that there was no post-conviction remedy.

While my research has not been exhaustive, I have found opinions reaching a contrary result to that expressed in the dicta in Hines.

In People v. Johnson (32 A.D.2d 968) the Second Department treats an application by a defendant as one properly to have been made, although the procedure thereafter was determined to have been prejudicial.

In People v. Bond (36 Misc. 2d 557), there is dicta to the effect that the youthful offender statute confers a privilege on a defendant to petition for youthful offender treatment, although the opinion points out that a defendant has no right to be so treated merely because he is of proper age.

In People v. Marino (51 Misc. 2d 238), the application is said to be one of "right", the court in the first instance having asked the defendant why he had not so applied. The court's expression of that opinion is also dicta, however, in that the defendant declined to accept such treatment until after conviction, whereupon he did apply. The subsequent application was held to have been made too late. Matter of Zivin v. District Ct. of County of Nassau (19 Misc. 2d 21) is not authority here. In that case, while the defendant did apply for youthful offender treatment, the District Attorney also recommended it.

Matter of Tschornyi v. County Ct. of County of Tompkins (283 App. Div. 910) was a case where the court directed an investigation on its own motion and after a probation report, denied the application. While the case is authority for the considerations to be weighed in determining eligibility, it is not in point on the narrow question here presented of whether the defendant in the first instance may apply to the court to order an investigation on its own motion.

In People v. Towler (30 A.D.2d 876) the defendant was offered youthful offender treatment on condition that he plead guilty. He did not do so. On appeal from the later conviction, the Appellate Division reversed on the ground that a condition that the defendant plead guilty could not be attached to the offer. While it is interesting that the appellate court examined the probation report and determined therefrom that the defendant should be offered youthful offender treatment in subsequent proceedings (holding that a determination of ineligibility from such report would be an improvident exercise of discretion), the case is not authority on the question now before me. We now turn to policy considerations. Keeping in mind the "benign purpose" of the statute (People v. Johnson, 32 A.D.2d 968, supra) and the problems that had arisen prior to its enactment (see People v. "Y.O. 2404 ", 57 Misc. 2d 30), I hold that any defendant who falls within the provisions of section 913-e of the Code of Criminal Procedure (by being within the proper age and not being charged with an offense therein enumerated) may apply to the court. Such application is necessarily one praying that the court on its own motion direct an investigation to determine eligibility.

Thus far I have determined merely that such a defendant may always apply, not that the application will always be granted.

Such application in my view should be made by the defendant himself and should be in writing (unless the District Attorney forthwith files a written recommendation for such treatment). The application need not be verified.

The written application by the defendant himself may, if he or his counsel so elects, be ...

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