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Court observed that there was no violation of procedural due process here.

Defendant was indicted in January or February, 1974 for the crimes of criminal sale of a controlled substance (cocaine) in the third degree, criminal possession of a controlled substance (cocaine) in the third degree, criminal sale of a controlled substance marijuana in the fifth degree and criminal possession of a controlled substance marijuana in the sixth degree; in addition, in March, 1974 he was indicted for the crime of criminal possession of a controlled substance marijuana in the sixth degree.

A Suffolk County Criminal lawyer said that during his trial Defendant pleaded guilty to the crime of criminal possession of a controlled substance in the third degree in satisfaction of all counts of both indictments. At that time defendant was advised of the consequences of his plea and that the mandatory minimum sentence was one year to life. A month later, and before sentencing, his counsel moved to vacate the conviction and to substitute a youthful offender adjudication on the ground that the statute forbidding the application of youthful offender treatment to persons indicted for class A felonies was unconstitutional. The motion was denied and defendant received a sentence of one year to life.

On this appeal defendant contends that the statute is unconstitution and that he must be resentenced as a youthful offender.

The issue of the constitutionality of the Youthful Offender Procedure has been raised previously in several cases, but without uniform conclusions. In a case, the court found unconstitutional because it violated both due process and equal protection of the laws. Thus, he said that the statute deprived youths of due process ‘because it gives conclusive weight to the untested allegations of the indictment’, and of equal protection ‘since it irrationally discriminates against those youths who had been charged with Class A felonies but who would be ultimately convicted of lesser felonies.’ The Appellate Division, First Department, affirmed without opinion. No appeal from that decision has been perfected by the People. In the First Department, therefore, the state of the law is that the statute is unconstitutional.

Other reported decisions reaching varying results as to the constitutionality of the statute have not been considered by the appellate courts. 4 Unquestionably, the effect of the stringent narcotics laws has induced the assault upon the constitutionality of the statute. It is, after all, the classification of crimes by the Legislature which is the operative factor in the determination of eligibility, and the enactment of legislation denominating certain violations of the narcotics laws as class A–I, A–II and A–III felonies prevents youths charged with these crimes from being treated as youthful offenders. The statute has since been amended to remove the prohibition of eligibility to youths indicted for Class A–III felonies, thus avoiding the wholesale denial of consideration for youthful offender treatment to youths indicted for crimes arising out of violations of the narcotics laws.

Nevertheless, the issue remains open for the present defendants and those similarly situated, as well as for youths who may be indicted in the future for class A–I or class A–II felonies. Moreover, in view of the conflict which exists in the decisions, it is highly important that an authoritative ruling be made on the issue. We invite, therefore, an application for leave to appeal to the Court of Appeals from the determinations reached here so that such a ruling can be made.

A plea of guilty waives all nonjurisdictional defects, among which are the unconstitutional composition of the grand jury and the constitutional rights of confrontation and jury trial. There is no absolute right under the statute, however, that one eligible be adjudicated a youthful offender; whether to make such an adjudication lies wholly within the discretion of the court. True, it is a reviewable discretion; nevertheless, it is also the fact that the eligible youth cannot claim youthful offender status simply because he is within the qualified age group. The right, if so it may be called, is only to be considered for youthful offender treatment.

Such an attenuated right should not survive a conscious and knowing plea of guilty. A defendant thereby elects not to stand trial; in the cases on appeal, have been allowed to plead guilty to one of a number of crimes charged in satisfaction of an entire indictment or to a lesser crime than for which he had been indicted. Under these circumstances, the benefits derived by these criminal defendants constitute grounds for waiver of the claim now made for youthful offender treatment.

Initially, the Court observed that there was no violation of procedural due process here. All three defendants were afforded the traditional stages in the criminal process, indictment, arraignment trial or plea of guilty and sentencing. The criminal defendants’ point is, rather, that substantive due process is breached because the charge in the indictment persisted beyond conviction in rendering them ineligible for youthful offender treatment. That is, the defendants say that since they have been convicted of a crime which, had they been indicted for it, would have permitted youthful offender treatment, they have been unconstitutionally affected because the higher charge in the indictment forbids eligibility.

In our State the Legislature has wide power to prescribe the nature and definition of crimes and the procedure to be followed in the prosecution and punishment of defendants. Under familiar principles, a strong presumption must be entertained that the Legislature has determined that facts exist indicating the need for the enactment of the statute and that it has responded to that need by providing the procedure laid down in the statute.

The doctrine of substantive due process is concerned with whether a particular State regulation of an individual interest is justified. Where the individual interest involves life, liberty or property, the test under substantive due process is whether there is a reasonable connection between the statute and the promotion of the safety and welfare of the community. Even were we to consider that the means adopted by the Legislature to accomplish its purpose are debatable, that would not suffice to declare the statute unconstitutional.

Where, however, the individual interest involves a fundamental right, the test of substantive due process is whether a ‘compelling state interest’ was advanced by the regulation, and whether the regulation was the least restrictive method available to effectuate the ‘compelling state interest’. The test of ‘reasonableness’ is similar to the test of ‘rational grounds’ used in determining a claim of unequal protection of the laws; and the test of ‘least restrictive method’ in advancing a ‘compelling state interest’ is also similar to the test of the ‘two-tiered’ standard used in considering equal protection, as we shall see beyond.

Rather than to discuss the bases of the legislation twice, we think it preferable to consider the claims of a violation of due process and equal protection together. For the purpose of these appeals, the two constitutional claims coalesce; and we view the claim of lack of substantive due process as subsumed under the more critical claim of the breach of equal protection of the laws.

The criminal defendants’ contentions regarding equal protection are relatively simple: they say that they are treated differently from others similarly circumstanced in that they may not receive youthful offender treatment because of the charge in the indictment, though convicted of a lesser crime permitting eligibility, whereas others indicted and convicted of the same lesser crime may receive youthful offender treatment. This result, they claim, deprives them of the equal protection of the law.

Clearly, the statute does not fall within the first branch of the preliminary question–it does not touch a suspect classification based on race, religion or national origin. Nor do we think that it falls within the second branch concerning interests of fundamental importance, though this construction presents a closer issue. Differences in treatment of criminal offenders have been considered not to affect an interest of fundamental concern

The States, therefore, may legislate, within the test of rationality, to grant youths of a certain age span benefits not accorded other criminal offenders without running afoul of demonstrating a compelling State interest; this approach allows the States to experiment in a program which will confer a benefit on one but not on another in the criminal process on the basis of a choice rationally reached

The Legislature, from the beginning of the youthful offender program, excluded youths who had been guilty of criminal conduct punishable by death or life imprisonment–the punish me now inflicted on a defendant guilty of a class A felony. That punishment is customarily reserved for defendants guilty of the most serious felonies. The Legislature evidently did not desire to confer the benefits flowing from youthful offender treatment on those youths whose conduct was of such heinous character; and it is not contended by the defendants that this discrimination is without a rational basis.

When the revision of the youthful offender provisions of the Code of Criminal Procedure was accomplished through the enactment of the present article 720 of the CPL, the Legislature decided to continue the distinction in the standard of eligibility, but to alter the time of determination of such status from a stage prior to conviction to a stage subsequent to conviction. This change was made because the procedure under the Code had proved to be cumbersome and administratively inadequate. The charge in the indictment, not the charge for which the defendant was found guilty, became the legislative choice upon which eligibility was determined. In making that choice, the Legislature did not discriminate without rational basis.

Throughout the criminal process, there exist certain discretionary choices which are inherent in a system of law enforcement. First, a prosecutorial discretion exists that is unreviewable: that is, whether an individual shall be prosecuted, and for what crime, or degree of crime. That discretion is protected from oversight by the courts under the doctrine of separation of powers. Thus, at that point in the process, the opportunity for different treatment between persons similarly situated presents itself.

Second, the Grand Jury may exercise its own discretion either in not voting an indictment or in returning an indictment against an individual for one or more counts. At that point, too, persons similarly situated may be differently treated.

Third, the petit jury, may, by its verdict exercise its power of nullification or of mercy by finding a defendant not guilty, or guilty of a lesser degree of the crime charged, even as to codefendants similarly situated. At this third point, persons similarly situated may be differently treated.

The Legislature has in effect elevated the second point–the action of the Grand Jury–for its choice in the determination of eligibility for youthful offender treatment. That choice may, of course, result in different treatment of persons similarly situated. But the same result of difference in treatment may arise from the verdict of the petit jury or the discretion of the prosecutor. Thus, two youths implicated equally in the commission of a murder, and indicted for that crime, may be differentiated at trial by the petit jury to the end that one is found guilty of manslaughter (allowing eligibility) and the other of murder.

The Legislature, in short, was entitled to combine the ease in the administration of judicial process with the obvious differences of treatment inhering in the usual operation of the enforcement of the criminal law as grounds for the creation of the eligibility standards of the statute. It is not important which of the grounds is primary.

The statute, accordingly, satisfies an administrative purpose and fixes an objective test for eligibility. That, incidentally, some youths will not benefit to the same degree as others does not abridge their constitutional rights. The quarrel of the defendants is, indeed, with the inclusion of the violation of the narcotic laws within the definition of class A felonies; that, however, was a classification plainly within the legislative competence. The finding of the Grand Jury that sufficient evidence existed to justify the return of an indictment containing charges of the level of a class A felony provided a clear and permissible expression of the goal of the Legislature to deny to youths charged with those crimes the benefits of youthful offender process, and complied with both substantive due process and equal protection standards. 7

The Court concluded, therefore, that the statute does not violate the dictates either of due process or equal protection of the laws.

Criminal cases should be handled by diligent and dedicated lawyers like our Suffolk County Criminal lawyers here in Stephen Bilkis and Associates. We are here to defend you in your court cases. For other matters, we also have Suffolk County Drug Crime attorneys.

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