Appeal by petitioner from denial of his petition for writ of habeas corpus, in the United States District Court, Southern District of New York, Brieant, Judge, based on lack of due process in felony conviction in New York state court which failed to afford him youthful offender treatment.
Anderson, Feinberg and Mulligan, Circuit Judges.
In 1968, the petitioner Mark Frasier was convicted in New York County Supreme Court for robbery in the first degree, assault in the first degree, and possession of a loaded firearm. Based on his plea of guilty in 1961 to grand larceny in the second degree, he was sentenced as a second felony offender to concurrent terms of fifteen to sixteen years on the robbery count, two and one-half to ten years on the assault count, and three and one-half to ten years on the firearms count. He is presently serving these sentences.
The district court denied Frasier's application under 28 U.S.C. § 2241 et seq. for a writ of habeas corpus seeking to have his 1961 conviction set aside because of claimed due process violations resulting from the state court's denial of his motion in 1961 to be accorded treatment as a youthful offender. Petitioner claims that the denial was based solely on the nature of the crimes charged (robbery in the first degree, grand larceny in the second degree, and receiving and concealing stolen property).*fn1 He further asserts that due process required that there be (1) a statutory standard for denying youthful offender treatment to persons who were not charged with capital crimes and thereby expressly excluded by law; (2) a hearing where the accused could contest the grounds for denial; and (3) a statement setting forth the reasons for denying youthful offender status.
Under the applicable New York youthful offender statute,*fn2 however, the court could, in its discretion, deny youthful offender treatment and the nature of the crime charged could be considered as a determining factor. People v. Fenner, 36 A.D.2d 825, 321 N.Y.S.2d 457 (2d Dept. 1971), aff'd, 30 N.Y.2d 509, 329 N.Y.S.2d 823, 280 N.E.2d 652 (1972); People v. Roberts, 35 A.D.2d 760, 315 N.Y.S.2d 208 (3d Dept. 1970). Furthermore, the state court judge had before him the prosecutor's affidavit, filed in opposition to petitioner's motion, describing the particular facts and circumstances of the alleged crimes.
The granting or denial of youthful offender treatment is analogous to that of sentencing where courts have wide discretion even though there are few or no statutory guidelines for the exercise of such discretion. Smith v. Follette, 445 F.2d 955, 960 (2 Cir. 1971); see United States v. Velazquez, 482 F.2d 139 (2 Cir. 1973). Once it is determined that the judge has exercised his discretion within statutory limits, appellate review is at an end. Dorszynski v. United States, 418 U.S. 424, 431, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974); Williams v. Illinois, 399 U.S. 235, 243, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970); Gore v. United States, 357 U.S. 386, 393, 2 L. Ed. 2d 1405, 78 S. Ct. 1280 (1958); Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948). Petitioner has shown no abuse of discretion by the state court judge.
In Dorszynski v. United States, supra, the United States Supreme Court held that a federal judge, in denying treatment under the Federal Youth Corrections Act,*fn3 must make the express finding required by that statute, which is that the offender would derive "no benefit" from such treatment; but such a finding need not be supported by a statement of reasons. 418 U.S. at 441-42. Similarly, petitioner's argument that the state court judge was constitutionally required to specify the reasons for denying youthful offender treatment is rejected.
Petitioner's claim that federal due process required that he be given a full adversary hearing is also without merit. He could have included in the affidavit submitted by his counsel to the state court judge in the first instance any information he wished to bring to the court's attention. There is no significant difference between the New York state program for youthful offender treatment and the discretional Federal Youth Corrections Act sentencing process that the Supreme Court considered in Dorszynski, supra. In the latter the Supreme Court approved less than full adversary hearing procedures. New York courts have also previously held that such a hearing was not required under the law of the State. People v. Fenner, supra; People v. Rogers, 62 Misc.2d 312, 308 N.Y.S.2d 568 (Sup. Ct., N.Y. Co. 1970).
The court expresses its gratitude to petitioner's court-appointed counsel, Richard G. Ashworth, Esq., for his admirable performance of duty as a lawyer in skillfully and conscientiously protecting and advancing the interests of the accused in the state and federal courts throughout a period of more than three years.
Inasmuch as petitioner has failed to show that any of his federal constitutional rights was violated, the judgment of the district court is affirmed.