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RESPRESS v. FERRARA

December 14, 1970

Darryl RESPRESS, by his father and next friend, Horace Respress, on behalf of himself and all others similarly situated, Plaintiff,
v.
Vincent J. FERRARA, individually and as Judge of the New York City Family Court, and Florence M. Kelley, individually and as Administrative Judge of the New York City Family Court, Defendants


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Darryl Respress is a fifteen-year old boy whose trial on charges of juvenile delinquency is pending in the New York City Family Court. He brings this suit for declaratory and injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. Jurisdiction is predicated on 28 U.S.C. § 1343(3) and (4).

 The remedy sought under 28 U.S.C. § 2201 is (1) a judgment declaring unconstitutional the New York Family Court practice of denying a jury trial to plaintiff and members of his class, defined as persons "charged with juvenile delinquency based on the alleged commission of an act which if committed by an adult would be a Class A or Class B felony, who are between 15 and 16 years of age at the time the act allegedly was committed, and who risk being sent to state prison," or (2) a judgment declaring unconstitutional New York Family Court Act § 758(b), which permits plaintiff and others similarly situated to be imprisoned within the state penal system without trial by jury.

 An injunction is asked either (1) to restrain Family Court Judge Vincent J. Ferrara, before whom plaintiff's case is pending, from adjudicating his juvenile delinquency without the right to a jury, or (2) if plaintiff is found, without the right to a jury, to be a juvenile delinquent, to restrain Judge Ferrara from committing him in accordance with the provisions of Family Court Act § 758(b).

 On this motion plaintiff seeks the convening of a three-judge court and a temporary restraining order pursuant to 28 U.S.C. § 2284(3) staying the state court proceedings pending the convening of the three-judge court.

 I.

 The facts are not in dispute. In September of this year plaintiff was charged with juvenile delinquency on the allegation of possession of a deadly weapon and armed robbery, acts which, if committed by an adult, would constitute a Class B felony under New York law. His case falls within the jurisdiction of the New York Family Court, the exclusive practice of which is to deny jury trials. *fn1"

 On plaintiff's appearance before Family Court Judge Ferrara September 8th, his attorney moved for a jury trial. The motion was denied. A motion for leave to appeal to the Appellate Division, First Department, under Family Court Act § 1112 was denied by that court on November 4th. No further appeals are available under state law. Plaintiff's trial is presently scheduled to commence before Judge Ferrara on December 16th.

 Most children tried by the Family Court, if adjudicated as juvenile delinquents and ordered in custody, are placed, pursuant to §§ 756 and 758(a) of the Act, in state training schools operated by the State Department of Social Services "for the training and care of children." (Social Services Law, McKinney's Consol. Laws, c. 55, § 425).

 On the other hand, plaintiff (and members of his class) may be placed in correctional institutions in accordance with Family Court Act § 758(b), which provides:

 
"Upon an adjudication of delinquency of a person who is fifteen years of age at the time of commission of any act which, if committed by an adult, would be a class A or a class B felony as defined in the penal law, commitment may be for males to Elmira reception center * * *"

 The Elmira reception center is operated by the State Department of Corrections and is not a state training school. It is a facility for "reception, classification and program-planning" until prisoners are permanently assigned within the state penal system. *fn2" (Correction Law, McKinney's Consol. Laws, c. 43, § 60). All inmates at the center with the exception of persons in plaintiff's class are sixteen to twenty-one years of age and were originally charged with crimes in the Criminal Court, where, of course, they had a right to jury trial.

 Under the circumstances of his case and the provisions of the Family Court Act, plaintiff, if adjudicated as a juvenile delinquent, may be held in custody for up to three years and apparently has no right to release on bail pending appeal after trial.

 If a temporary restraining order were granted on this motion, plaintiff would not be released from custody, and no such relief is presently requested.

 II.

 On this state of facts plaintiff claims violation of his rights to due process of law and equal protection under the Fourteenth Amendment, and against cruel and unusual punishment under the Eighth Amendment.

 Plaintiff states that under the principles as to the rights of juvenile defendants enunciated in In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), complemented by the decisions as to the right to jury trial in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968), and Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970), the denial of a jury trial in the circumstances of this case deprives him of his liberty without due process. He argues that he and his class are being denied equal protection in that they are (1) set apart in the state penal system as the only class committed to Elmira (or, presumably, any correctional institution) without the right to a jury trial, and (2) set apart in the Family Court system as the only class to be sentenced to a term in the state penal facilities while all others are sentenced to training schools. He contends that these constitutional defects should be remedied either (1) by requiring a jury trial for all juveniles who can be sentenced under Family Court Act § 758(b), or (2) by declaring § 758(b) unconstitutional in the absence of a right to jury trial.

 As to the Eighth Amendment violation, plaintiff asserts that it is infliction of cruel and unusual punishment for him, a fifteen-year old prisoner, to be incarcerated in an institution which is run by the State Department of Corrections and populated by older offenders.

 Plaintiff concludes that, pending the convening of a three-judge court, a temporary restraining order should protect him against the irreparable harm of imprisonment (among older offenders) without a jury trial. He argues that the anti-injunction statute (28 U.S.C. § 2283) does not bar the court from granting injunctive relief, and even if it did, the court would still have jurisdiction to grant a declaratory judgment.

 The defendants contend that the complaint fails to state a claim within the court's jurisdiction, that the case does not come within any of the exceptions to the anti-injunction statute, and that this court is therefore barred from granting relief; and that, in any event, plaintiff has not shown the extraordinary need which the law requires for interference by federal courts in state criminal proceedings.

 As to the request for a declaratory judgment, defendants suggest that, since two cases are presently pending before the United States Supreme Court which will determine the question of the right to a jury trial in cases of juvenile delinquency, and since Abbott Laboratories v. Gardner, 387 U.S. 136, 155, 87 S. Ct. 1507, 1519, 18 L. Ed. 2d 681 (1967), held that "[it] is grounds for the denial of ...


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