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March 6, 1974

UNITED STATES ex rel. Lois SERO et al., Petitioners,
Peter PREISER, Commissioner of the New York Department of Correctional Services, et al., Respondents

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

The issues before us in this latest of a number of opinions filed in this storied case are whether plaintiffs' allegations that the New York procedure for imposing "extended" reformatory sentences upon them is unconstitutional and that they are constitutionally entitled to time off for good behavior state claims upon which relief can be granted. We wrote earlier on these subjects, when plaintiffs sought injunctive relief, and the issue before us was whether these propositions presented substantial constitutional questions such as to require the convening of a three judge court. We held that they did. 351 F. Supp. 522 (D.C. 1972) and 355 F. Supp. 1231 (D.C. 1973). Since that time plaintiffs have withdrawn their request for injunctive relief, and we are now asked to rule as a single judge on defendants' motion to dismiss the two claims described above.


 Plaintiffs have been convicted of misdemeanors which carry a sentence of a year or less in the case of an adult. However, under the provisions of §§ 75.00 and 75.10 of the New York Penal Law, they have been sentenced to indefinite reformatory terms of up to four years. The statutory provisions for such an "extended sentence" contain no standards as to when they should be applied, although they have been construed by the courts of New York to be applicable only when the defendant is "reformable" (see People ex rel. Meltsner v. Follette, 32 A.D. 2d 389, 302 N.Y.S. 2d 624 (2d Dept. 1969); cf. People v. Bell, 38 A.D. 2d 778, 328 N.Y.S. 2d 153 (4th Dept. 1972)). Plaintiffs contend that they have been deprived of due process, since they were not accorded dispositional hearings to determine whether they were indeed reformable. They further argue that they are entitled to such a hearing under the equal protection analysis of Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972), applied in Davy v. Sullivan, 354 F. Supp. 1320 (M.D. Ala. 1973) (three judge court).

 Defendants deny the applicability of Humphrey and Davy (or Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967), a forerunner of Humphrey). As to Specht, they argue that the Court ruled that a separate hearing is required only when a conviction of crime triggers the need for new findings as to whether a defendant is in fact a sexual deviate. As to Humphrey, defendants contend that its holding is limited to the proposition that new findings by a jury outside the traditional sentencing process may be required on equal protection grounds where -- but only where -- similar findings are required by state law for civil commitments.

 We agree with defendants that the Humphrey-Specht axis of decision does not point to the constitutional requirement of a "dispositional hearing" for imposition of an extended sentence in the case of a young offender. We accept defendants' rationale that it is not the correlation between the actual length of sentence and the maximum possible sentence for the crime that is critical as to whether a dispositional hearing is required, but rather the nature of the determination to be made in imposing sentence. As we read Humphrey-Specht, a dispositional hearing may be constitutionally required as a matter of due process (Specht) or equal protection (Humphrey) where it is necessary to make a separate decision of fact outside the traditional sentencing process -- e.g., as in those cases, whether the defendant is in fact a sexual deviate, -- but not, as here, to determine whether a defendant shows rehabilitative potential, a matter which falls within the parameters of traditional sentencing.

 Nevertheless, for reasons which we will elaborate, we conclude that the contention that the New York statutory framework for imposing on youthful offenders reformatory sentences which may be substantially longer than the sentence which may be imposed on adults for the same offense is unconstitutional, as that framework has been construed by the New York courts, states a claim upon which relief can be granted.


 Defendants argue that the New York statutory scheme is "identical" to the Federal Youth Correction Act (18 U.S.C. § 5010 ff) and we have earlier held that the two acts are sufficiently similar so that federal decisions construing the latter may appropriately be applied in determining the constitutionality of the former (351 F. Supp. at 526-527).

 The constitutional underpinning for the imposition of a longer sentence on a youthful offender than an adult for the same crime has been stated in plain words by Chief Justice (then Judge) Burger in Carter v. United States, 113 U.S. App. D.C. 123, 306 F.2d 283, 285 (1962) as follows:

"[Commitment] under the Youth Correction Act may be longer than one year in cases of misdemeanors, essentially because such confinement cannot be equated with incarceration in an ordinary prison. . . . But the basic theory of that Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison. The reasoning of the Cunningham court is relevant in this connection. The court there noted that the Youth Corrections Act 'provides for and affords youthful offenders, in the discretion of the judge, not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to rehabilitation and social redemption and restoration. ' 256 F.2d at 472."

 The clear instruction of the Carter holding, which is typical of a plethora of federal decisions upholding the constitutionality of the federal act, *fn1" is that absent the quid pro quo of rehabilitation an extended sentence is not constitutionally justified.

 We must, therefore, examine the New York statutory framework, as construed by the New York courts, to determine whether, as its provisions operate, defendants who are sentenced to extended reformatory sentence under its provisions are assured of the opportunity of rehabilitation. We conclude that they are not.

 To be sure the New York scheme includes many virtues. For example, the New York Criminal Procedure Law (CPL) *fn2" sets out a detailed, normal, modern presentence and sentence procedure. Before a reformatory sentence can be imposed, it requires a pre-sentence investigation of "the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, and the defendant's social history, employment history, family situation, economic status, education, and personal habits," as well as "any other matter which the agency conducting the investigation deems relevant to the question of sentence." (CPL § 390.30(1).) Furthermore, the pre-sentence report, presented to the sentencing judge, must contain not only an analysis of as much of the investigated material as the agency deems relevant to sentence (CPL § 390.30(3)), but also "must include any matter the court directs to be included" (CPL § 390.30(1)). Even if the worst is assumed, that is, that a hard-pressed judge faced with a heavy calendar of sentences may not often ask, or know enough about the information available to ask, that facts not considered relevant by the agency be included, the statutory requirements for investigation and report provide a framework which assures that the sentencing judge will have adequate information upon which to determine whether a reformatory sentence is appropriate.

 This conclusion is strengthened by the fact that the CPL, provides a statutory right to the defendant to file his own pre-sentence memorandum "setting forth any information he may deem pertinent to the question of sentence," together with written statements by ...

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