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Defendant, a 16 year old boy, is charged with petit larceny and criminal possession of stolen property both arising out of an alleged pocket-book snatch on May 1, 1978. He was arraigned the next day and held in bail pending a hearing which was held on May 18, 1978. Both charges are class A misdemeanors carrying a maximum penalty for non-youthful offenders of one year’s incarceration. Inasmuch as this 16 year old defendant has never been convicted of a crime or found to be a youthful offender, he is eligible for mandatory adjudication as a youthful offender carrying a maximum penalty of six months incarceration. In this instance, because he must be accorded this mandatory adjudication, the statute requires a single judge trial without a jury. Had the defendant already once been adjudicated a youthful offender thus placing his being treated as such on this occasion within the court’s discretion, he would be entitled to trial by jury.

Defendant now challenges the constitutionality of the statute depriving him of a jury trial. The court is here presented with a constitutional challenge to Criminal Procedure Law § 340.40(7) which denies trial by jury to a youth who is eligible for mandatory youthful offender treatment at the same time this right is available to any other defendant, a discretionary youthful offender included, who is charged with the same crime.

The limited power of trial courts to strike down a State statute as unconstitutional has been stated repeatedly. Particularly courts of first instance should not exercise transcendent power of declaring an act of the Legislature unconstitutional except in rare cases where life and liberty is involved and the invalidity of the act is apparent on its face.
We find CPL § 340.40(7) constitutionally offensive and strike it down for the following reasons:

The Sixth Amendment’s requirement of trial by jury for crimes has been held to refer to “serious” crimes as opposed to “petty” ones (The Court stating the ruling in Duncan v. Louisiana and Baldwin v. New York). The emphasis of the Sixth Amendment is on the crime itself and not on the prospective punishment. Indeed, when Baldwin v. N. Y., set up the six month line of demarcation between “serious” crimes and “petty” ones, it never undertook, even by its own terms, to redefine any crimes. Rather the six-month boundary was a convenient rule of thumb. Taken together, Duncan and Baldwin did not change the public policies of the separate states. Rather, they took pains to insure that a state could not maneuver away from Sixth Amendment jury trial guarantees by the simple act of classifying a serious crime otherwise. The high court has been very careful to leave to the separate states the power to set their own public policy; to delineate acts which they consider criminal, either “serious” or “petty”; the right to call forth moral condemnation of these acts by conviction; and the right to set punishment. The notion that the ultimate sentence imposed defines the nature of the crime, a fortiori has received its share of Supreme Court condemnation. Moreover, it is clear from both Baldwin and Duncan that a “serious” crime may be, and when appropriate, must be defined as such even where a six-month sentence is not imposed by statute.

Baldwin did not hold that the maximum potential sentence was the sole criterion by which to determine whether an offense was petty; it said only that the maximum penalty was ‘the most relevant’ objective criterion in making the petty or nonpetty determination.

We conclude that appellant was entitled to a jury trial, first, because the crime with which he was charged was an indictable and serious offense at common law, and second, because the crime itself is morally offensive and Malum in se.

Even if a first conviction becomes the subject of a mandatory youthful offender finding thus purporting not to be a criminal conviction, this finding itself may become a predicate in a subsequent prosecution wherein youthful offender status may be denied. Having been rendered in a constitutionally defective proceeding lacking trial by jury, its utility in the statutory scheme becomes null and void.


We respectfully submit that the “youth-adult” classification does not apply here. We are not now faced with a youth who, being given special benevolent treatment may be classified separately from an adult. In reality, the classes matched against each other in this instance are youths with no criminal convictions as against youths with prior convictions. In so doing, the state moves a youth from one category to another on the basis of state action via its courts which deny the right to trial by jury. This it may not do constitutionally.

The primary purpose of the youthful offender law is to prevent the imposition of increased punishment on a subsequent conviction of this defendant of a crime. In effect therefore, the State of New York not only establishes the first (viz. mandatory) youthful offender finding as a predicate or basis for denial of such treatment in a future prosecution without a constitutionally mandated trial by jury, but does so even in the face of holdings characterized by Shannon which disapprove the concept of escalating punishment.


The annals of constitutional law may well single out the decade of the 1960’s as the most fertile and creative in history. As an offshoot to an unparalleled expansion of Constitutional frontiers, the landmark decisions of the Supreme Court also triggered lower courts and intermediate courts of appeal to extend themselves and grant recognition to new and innovative doctrines, ideas which were so far ahead of their time that they are first reaching the high court in the middle and late 70’s. One of these children of the 60’s is that line of authority which has come to be known as the “right to treatment” cases. These cases which were originally litigated in the field of mental health held in effect that where a state guarantees benevolent treatment to a classified group, and thereby deprives an individual of liberty for any period however brief through proceedings which lack any element of classical 14th Amendment due process, it is under a positive obligation to furnish treatment. When a state deprives an individual in the name of treatment and fails to furnish it, the cause or pretense of detention becomes illusory thus rendering further confinement constitutionally unlawful.

In a case decided by the Court of Appeals, the court considered a statute providing for commitment of mental defectives. The court gave judicial recognition to the right to treatment and remanded for appropriate considerations on specifics thereof. The importance of the right-to-treatment cases and Supreme Court approval thereof becomes apparent from the fact that this interpolated right which first saw the light of day as applied to mental patients was extended to juvenile proceedings before O’Connor reached the Supreme Court.

We thus arrive at the inevitable conclusion that the State of New York by providing for a constitutionally defective trial for mandatory youthful offenders, is under a concomitant obligation to provide treatment, an obligation it makes no pretense at meeting. While the statute provides for benign handling of youthful offenders, it is totally silent on the issue of treatment. We therefore find New York’s youthful offender statute constitutionally defective as failing to provide constitutionally mandated treatment as Quid pro quo for denial of trial by jury.

Youthful offenders however we may call them are still subject of equal application of laws, albeit, they have some special treatments that and adult offender does not have. If you have a case similarly situated as the case above, you can seek legal assistance with Stephen Bilkis & Associates together with its Kings County Criminal Attorneys and Kings County Family Lawyers.
For free legal advice you could call us to our toll free number or visit our office nearest you.

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