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December 1, 1976

ARTHUR DRAYTON, Petitioner, against THE PEOPLE OF THE STATE OF NEW YORK, EUGENE GOLD, District Attorney, and LOUIS J. LEFKOWITZ, Attorney General, State of New York, DEPARTMENT OF CORRECTIONS OF THE CITY OF NEW YORK and BENJAMIN MALCOLM, Commissioner, ARTHUR RUBIN, Warden of Rikers Island, Respondents.

The opinion of the court was delivered by: NEAHER


NEAHER, District Judge.

 Petitioner, in his application for a writ of habeas corpus, *fn1" challenges the constitutionality of section 720.20 (1) of the New York Criminal Procedure Law, which mandates youthful offender treatment for eligible youths convicted of a misdemeanor in a local criminal court but leaves such treatment to the court's discretion when eligible youths are convicted of the same class of offense in a superior court. Youths in the former category automatically have their convictions vacated and replaced by a youthful offender finding, all records relating to their case remain confidential, and they are subject to a sentence of no more than six months in prison. Youths in the latter category, on the other hand, may be denied all of the benefits of youthful offender treatment, may receive sentences of up to a year and remain stigmatized with a criminal record.

 CPL 720.20(1) makes the following distinction between youths convicted in "local criminal courts" (e.g., New York City Criminal Court) and those convicted in "superior courts" (e.g., New York Supreme Court):

 "1. Upon conviction of an eligible youth, the court must order a pre-sentence investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender. Such determination shall be in accordance with the following criteria:

 "(a) If in the opinion of the court the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years, the court may, in its discretion, find the eligible youth is a youthful offender; and

 "(b) Where the conviction is had in a local criminal court and the eligible youth had not prior to commencement of trial or entry of a plea of guilty been convicted of a crime or found a youthful offender, the court must find he is a youthful offender."


 The effect of this distinction is well illustrated in this case. In 1972 a grand jury indicted petitioner, then 16 years old, on two counts of attempted robbery in the second degree and one count of assault in the second degree. All counts charged were Class D felonies. Petitioner entered a plea of not guilty. Several months later, in Supreme Court, petitioner was permitted to withdraw his not guilty plea and to plead guilty to the crime of assault in the third degree, a Class A misdemeanor, in full satisfaction of the indictment. *fn2" At that time the court also found petitioner to be an "eligible youth," i.e., he was eligible for youthful offender treatment because he was between the ages of 16-19 when he committed the crime, he had not been convicted previously of a felony, and the indictment did not charge him with a Class A felony. CPL § 720.10(1), (2).

 At the subsequent sentencing, the court, on the basis of an unfavorable probation report, denied youthful offender treatment and sentenced petitioner to one year in prison. Had petitioner been in a New York City Criminal Court, he automatically would have been accorded youthful offender treatment, his sentence could not have exceeded six months and all official records relating to his case would be confidential.

 Thereafter petitioner moved to set aside his sentence on the ground that CPL § 720.20(1), the statute here under attack, violated the Equal Protection Clause of the Fourteenth Amendment. The sentencing judge denied petitioner's motion, and the Appellate Division, Second Department, permitted him to appeal both the denial of his motion and the conviction. The Appellate Division ruled against petitioner, 47 A.D.2d 952, 367 N.Y.S.2d 506 (2d Dept. 1975), and the Court of Appeals affirmed. 39 N.Y.2d 580, 350 N.E.2d 377, 385 N.Y.S.2d 1 (1976). On September 21, 1976, petitioner applied to this court for a writ of habeas corpus. *fn3"


 The issue raised by the petition is whether the Equal Protection Clause requires that no discrimination may be made in granting youthful offender treatment to eligible misdemeanant solely because conviction occurred in one court of the State rather than another. For the reasons which follow, the court holds that the Equal Protection Clause does impose such a requirement and thus the petition must be granted.

 At the outset the court notes that there being no "suspect classifications" or "fundamental rights" involved in this case, it cannot subject the challenged statute to strict scrutiny. See Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). Instead, the "rational basis" test must be applied. McGinnis v. Royster, 410 U.S. 263, 35 L. Ed. 2d 282, 93 S. Ct. 1055 (1973). As the Supreme Court expressed this test in Walters v. City of St. Louis, 347 U.S. 231. 237, 98 L. Ed. 660, 74 S. Ct. 505 (1954):

 "Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences, that the distinction have some relevance to the purpose for which the classification is made, and that the different treatments be not so disparate, ...

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