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The motion is denied in all respects and defendant is ordered held for the grand jury.

On 22 September 1978, the fifteen year old defendant was arrested and charged with Robbery, Second Degree, P. L. Sec. 160.10, an act for which a fifteen year old may be held criminally responsible. P.L. Secs. 10, 30, as amended Ch. 481, L.1978 pursuant to P.L. Secs. 10, 30, as amended Ch. 481, L.1978.

On 28 September 1978 a preliminary hearing was held. At the conclusion thereof, the court found that there was reasonable cause to believe that the defendant committed the crime of Robbery, Second Degree, while displaying an imitation gun, an armed felony.

Immediately thereafter, the defense renewed its motion for removal of the case in the interests of justice to the Family Court. The prosecutor stated that the District Attorney would not consent to removal of the armed felony and that, therefore, under CPL § 180.75(4)(b), the court had no authority to remove the case and no discretion to make an inquiry respecting removal.

The defendant hinges its arguments on two basis, that is, the failure to provide the criminal defendant with an in the interests of justice judicial removal hearing to the Family Court where the defendant is charged with an armed felony denies defendant due process of law and renders CPL § 180.75(4)(b) unconstitutional, and the failure to provide the in the interests of justice judicial removal hearing to the defendant deprives the defendant of his right to equal protection of the law in violation of the 14th Amendment of the United States Constitution and Article I, § 11 of the New York State Constitution.

The court in considering the constitutional dimensions of the defendant’s motion reserved decision pending submission of memoranda of law by both the defendant and People.
The defendant supports his position on the rulings made in Kent v United States and People v Drummond.

The court, however, is not convince beyond reasonable doubt that the statute in question denies the defendant due process of law and/or deprives him of the equal protection of the law. The enactment of this bill in September 1978 expanded the jurisdiction of the adult criminal court system to encompass certain enumerated felonies committed by 13, 14 and 15 year olds. Sec. 33 of the Statute amended the CPL by adding a new section 180.75 which sets forth the required procedures for treatment in the criminal court of a juvenile offender charged with a felony.

CPL § 180.75(4)(a) provides for mandatory removal of a non-armed felony to the Family Court In the interests of justice if the District Attorney requests such removal. Also, the court, sua sponte, or upon motion of the defendant may order such removal, in the interests of justice. Further, it states unequivocally that where the complaint charges Murder 2o or an armed felony said removal in the interests of justice is not applicable.

CPL § 180.75(4)(b) gives the court discretion to remove an armed felony only if the District Attorney consents to removal and only if the court after making inquiry finds one of the following factors (1) mitigating circumstances that bear directly upon the manner in which the crime was committed, (2) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution or (3) possible deficiencies in proof of the crimes.

The court notes that in the case of Kent, there lies a great distinction between New York’s statute and the District of Columbia statute which affected, the juvenile, Kent. The District of Columbia statute gave the Juvenile Court Exclusive jurisdiction over a youth accused of a crime. The statute provided that The Juvenile Court judge had the discretion to waive this exclusive jurisdiction and transfer the case to the District Court, if after full investigation, the judge determined that the juvenile was not a suitable subject for rehabilitation. Unlike the District of Columbia statute, New York’s statute places original and exclusive jurisdiction over the defendant in a criminal court. Thus, a juvenile possesses no statutory right to treatment as one.

In the case at bar, the determination of original jurisdiction was a legislative one unlike in Kent wherein it was judicial. The court notes with interest that none of the cases cited by the defendant center on the very issue before this court but, instead all focus on the issue of judicial waiver from a juvenile court to an adult criminal court.

The court is unaware of any decisions either state or Federal that have judicially condemned a legislative body for having limited a particular juvenile court’s jurisdiction by excising therefrom certain crimes committed by juveniles and placing those crimes under the original and exclusive jurisdiction of the adult criminal court.

The accused under the challenged statute is given every right which adults receive, relative to arraignment, counsel, bail, preliminary proceedings and release upon failure of timely disposition, all of which apply without distinction as to age.

Based the foregoing, the court finds the defendant’s reliance on Kent misplaced.
The defendant points to the New York State Court of Appeals case of People v. Drummond. In Drummond, the unconstitutional statute, CPL § 720.10, made eligibility for youthful offender treatment after conviction dependent on the seriousness of the felony charged in the instrument rather than the seriousness of the felony of which the juvenile was ultimately convicted. Under the statute, a defendant indicted for a Class A felony was barred from youthful offender treatment even if convicted for a lesser offense. This statute was held to violate due process in that such discrimination based solely on a mere allegation was arbitrary.
Contrary to Drummond, the defendant, herein, although initially charged in a criminal complaint with being an “armed felon,” is not forever foreclosed from having his case removed to the Family Court and being treated as a juvenile in a juvenile setting. The door to the Family Court is always open at every level of the criminal court proceedings. The District Attorney may recommend removal both after indictment and after verdict, CPL s’s 220.10(5)(h)(iii) and 330.25. Both the grand jury and petit jury have the power to remove the case without the District Attorney’s consent by a finding that the defendant is guilty only of a crime for which he is not criminally responsible, CPL s’s 190.71 and 310.85.

The court emphasizes as in the case of United States v Rombon, Stokes v Genakos and People v Jiles that there exists no constitutional right to juvenile treatment. The statutory provision for removal of certain cases to the Family Court must be considered a Privilege and Benefit and not a right.

Inasmuch as the removal provisions are a matter of legislative grace, the legislature’s further qualification and restriction of this “benefit” in the form of CPL § 180.75 4(b) is not violative of the defendant’s due process rights and provided said classification is neither “arbitrary or invidious,” it is not a violation of defendant’s rights under the equal protection clause of the constitution.

It should be noted that Congress and the various state legislatures vest discretionary power in a prosecutor to determine whether an offender should be prosecuted as a juvenile or as an adult. It may also grant discretionary power generally without providing any statutory guidelines for the exercise of discretion as held in Woodard v. Wainwright and United States v. Bland. He can exercise his discretion to continue the prosecution in his chosen forum by refusing to consent to removal. The consent decision is but another of the prosecutor’s widely recognized powers and ln urging his equal protection claim, the defendant says that CPL § 180.75(4) (b), operates to deny the defendant a fundamental due process right on the basis of an arbitrary and invidious classification: the statute allows such a determination to be made for all juveniles charged with offenses for which they may be criminally responsible with the exception of those charged with armed felonies, including as in this case, offenses in which only what appears to be a firearm is used.

In addressing equal protection claims, the courts have traditionally looked to two tests, “strict scrutiny” and “rational relationship.” The strict scrutiny test is applicable only in a very limited number of cases where the challenged classification operates to the disadvantage of some suspect class or impinges upon a fundamental right protected by the constitution.
The defendant’s claim that the removal provision operates to deprive him of an interest in liberty, a “fundamental interest”, does not fall within the operative definition of “fundamental interests” as articulated in San Antonio School District v. Rodriguez holding that an interest is fundamental for the purposes of equal protection if it is based on rights explicitly or implicitly guaranteed by the Constitution.

In analyzing defendant’s due process plea, the operation of CPL § 180.75 serves only to require the case to be held for the grand jury, the defendant is only deprived of his liberty if found guilty of a crime which he is criminally responsible by a petit jury.

Removal is a privilege and a matter of legislative grace: that the legislature saw fit to make the standards for removal less restrictive for those who commit less serious offenses in no way makes the more lenient dispositions of the Family Court which do not include mandatory sentences a fundamental right. If there is no fundamental interest involved, the strict scrutiny test is not applicable, and thus, this court must look to the rational relationship test as the appropriate standard of review.

In Reed v Reed and Baxstrom v Herold, the challenged classification must bear a reasonable relationship to the object of the legislation and some relevance to the purpose for which the classification is made must be shown.

The defendant asserts that the discriminatory classification in the case at bar bears no rational relationship to the state’s interest, that the definition of “armed felony” is itself arbitrary in that it includes harmless toy guns, while excluding dangerous knives and other instruments, that other “armed felonies” involving juveniles are totally exempt from Criminal Court jurisdiction and the state’s asserted interest in public safety is neither rationally nor legitimately satisfied by a statutory classification that fails, for the purposes of determining jurisdiction over the juvenile, to consider in toto, the needs and background of the juvenile and the circumstances giving rise to the offense.

The court is careful to observe that criminal statutes carry with them the strong presumption that the Legislature has found facts indicating a need for the enactment. Further, in reviewing this legislation the court is bound by the time honored principle of statutory construction that mandates in construing statutes the courts do not sit in review of the discretion of the legislature or determine the expediency, wisdom or propriety of its action or matter within its powers,

The logic behind the legislative view underlying CPL § 1.20, subdivision 41, i. e., that guns, whether operable or not are inherently more dangerous and more likely to lead to violence than other weapons, is demonstrably sound. Guns are extremely effective death producing instruments and that they harm society by making it easy to injure or kill its members. They are capable of inflicting serious or fatal injuries on a large number of people over greater distances with less effort and with less risk to the attacker than any other weapon.

A criminal displaying a gun is inherently more dangerous to society than a criminal displaying any other type of weapon. Since most victims cannot distinguish between operable and inoperable guns, criminals carrying inoperable guns pose an almost equally significant threat to society. Accordingly, the rationale behind the legislative action in distinguishing crimes involving both operable and inoperable guns from crimes involving other types of weapons was entirely reasonable and appropriate.

As for defendant’s contention that it was irrational not to include possession of a weapon and attempted robbery within the classification of an armed felony, surely the legislature may conclude that there is an important distinction between (1) possession of a weapon and actually using a weapon to further the commission of a crime and (2) attempting the commission of a crime which may involve only preliminary preparatory steps and successfully carrying out a crime leaving no doubt about either intent, competence or dangerousness.
The motion is denied in all respects and defendant is ordered held for the grand jury.

Kings County Gun Crime Attorneys, Kings County Robbery Attorneys and Stephen Bilkis & Associates are experts in this kind of litigation. Our extensive knowledge on juvenile rights has made us win countless litigation such as the case mentioned above. If you have questions regarding this case or if you are in a similar situation, please do not hesitate to call our toll free number or visit our office near you.

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