
    The People of the State of New York, Respondent, v. John Allen, Appellant. The People of the State of New York, Respondent, v. John Fuller, Appellant. The People of the State of New York, Respondent, v. Joan Klein, Appellant.
    Argued June 5, 1968;
    decided July 2, 1968.
    
      
      Leon B. Polsky and Anthony F. Marra for appellant in the first above-entitled action.
    The commitment of appellant to a penal institution violates the Eighth Amendment of the Federal Constitution and section 5 of article I of the New York Constitution. (Robinson v. California, 370 U. S. 660.)
    
      Aaron E. Koota, District Attorney (Raymond J. Scanlan and Harry Brodbar of counsel), for respondent in the first above-entitled action.
    Appellant’s commitment to the Elmira Reception Center does not contravene the Eighth Amendment to the Constitution of the United States and section 5 of article I of the Constitution of the State of New York. (People v. Salisbury, 18 N Y 2d 899,19 N Y 2d 703; Robinson v. California, 370 U. S. 660; People v. Negron, 15 N Y 2d 914; People v. James, 9 N Y 2d 82; People v. Phyfe, 136 N. Y. 554.)
    
      Leon B. Polsky and Anthony F. Marra for appellant in the second above-entitled action.
    I. Sections 913-c and 913-d of the Code of Criminal Procedure are unconstitutional in that they require the incarceration of wayward minors in penal institutions. Appellant’s rights under the equal protection clause of the Fourteenth Amendment and the cruel and unusual punishment clause of the Eighth Amendment were violated. (Baxstrom v. Herold, 383 U. S. 107; Robinson v. California, 370 U. S. 680.) II. There is no evidence that appellant was morally depraved. (Thompson v. Louisville, 362 U. S. 199.)
    
      Aaron E. Koota, District Attorney (Raymond J. Scanlan and Harry Brodbar of counsel), for respondent in the second above-entitled action.
    I. The statute under which appellant was committed to the Elmira Reception Center is constitutional. (Wiggins v. Town of Somers, 4 N Y 2d 215; Lincoln Bldg. Assoc. v. Barr, 1 N Y 2d 412; People v. Finkelstein, 9 N Y 2d 342; Wasmuth v. Allen, 14 N Y 2d 391, 379 U. S. 11; Matter of Gault, 387 U. S. 1; People ex rel. Kaganovitch v. Wilkins, 23 A D 2d 178; People v. Bailey, 21 N Y 2d 588; Sonnenberg v. Markley, 289 F. 2d 126; Suarez v. Wilkinson, 133 F. Supp. 38; Specht v. Patterson, 386 U. S. 605; Sweeney v. Cannon, 23 A D 2d 1, 18 N Y 2d 726.) II. Appellant’s guilt was established beyond a reasonable doubt. (People ex rel. Deordio v. Palmer, 230 App. Div. 397; People v. Friola, 11 N Y 2d 157; People v. Leonti, 18 N Y 2d 384.)
    
      Leon B. Polsky and Anthony F. Marra for appellant in the third above-entitled action.
    I. The wayward minor statute is unconstitutional. The statute violates the due process clause of the Fourteenth Amendment by failing to adequately define the conduct which is forbidden. (Matter of Gault, 387 U. S. 1; People v. Salisbury, 18 N Y 2d 899, 19 N Y 2d 703; Specht v. Patterson, 386 U. S. 605; Giaccio v. Pennsylvania, 382 U. S. 399; N. A. A. C. P. v. Button, 371 U. S. 415.) II. The statute as applied is an unlawful exercise of the police power and impermissible class legislation. (People v. Munoz, 9 N Y 2d 51 ; Fenster v. Leary, 20 N Y 2d 309; Matter of Gault, 387 U. S. 1; Baxstrom v. Herold, 383 U. S. 107.) III. The judgment must be reversed because of the failure of the trial court to make findings. (People v. Huntley, 15 N Y 2d 72; People v. Lombardi, 18 A D 2d 177, 13 N Y 2d 1014; People v. Lopez, 19 A D 2d 809; People v. Alfinito, 16 N Y 2d 181; Kent v. United States, 383 U. S. 541.) IV. The trial court improperly deprived appellant of the right to call witnesses on her behalf and to present argument in summation. (People v. Kvalheim, 17 N Y 2d 510; People v. Witenski, 15 N Y 2d 392.)
    
      Aaron E. Koota, District Attorney (Harry Brodbar of counsel), for respondent in the third above-entitled action.
    I. The statutes which are clear and precise do not unconstitutionally denigrate appellant’s fundamental rights and are a recognition that a State in its role as parens patries has a serious responsibility to minors within its jurisdiction. (Prince v. Massachusetts, 321 U. S. 158; Ginsberg v. New York, 390 U. S. 629; Bookcase, Inc. v. Broderick, 18 N Y 2d 71, 385 U. S. 12; People v. Kahan, 15 N Y 2d 311; People v. Munoz, 9 N Y 2d 51; Fenster v. Leary, 20 N Y 2d 309; People v. Salisbury, 18 N Y 2d 899, 19 N Y 2d 703; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495; United States v. Petrillo, 332 U. S. 1; Matter of Gault, 387 U. S. 1; People v. Kaminsky, 137 App. Div. 94, 208 N. Y. 389.) II. The reasons for the adjudication of appellant as a wayward minor are evident from the testimony adduced at the hearing. (People v. Alfinito, 16 N Y 2d 181; People 
      v. Atlas, 183 App. Div. 595, 230 N. Y. 629; Lee v. City Brewing Corp., 279 N. Y. 380; People v. Leonti, 18 N Y 2d 384.) III. No prejudicial error was committed by the court at the hearing. (People v. Trimarchi, 231 N. Y. 263; Clark v. United States, 61 F. 2d 695, 289 U. S. 1.)
   Bergan, J.

These three cases, heard together although differing in details, have a common question: What constitutes moral depravity or the '' danger of becoming morally depraved ’ ’ within the wayward minor provisions of subdivisions (5) and (6) of section 913-a of the Code of Criminal Procedure?

Appellants attack the constitutionality of the statute for vagueness and for opening the possibility of conviction and a penal-type method of correction for persons between 16 and 21 on standards which, for an adult, would not be sufficiently definite as to exactly the kind of conduct which would lead to correction.

The court, as recently as 1966, has sustained the constitutionality of the statute (People v. Salisbury, 18 N Y 2d 899) against the argument that “ morally depraved ” was too vague a statutory prescription (p. 900); and for the reasons which are developed here leading to reversal of these convictions on the merits it is unnecessary to reconsider the constitutional issue.

A person adjudged a wayward minor may be committed to a reformative institution” (Code Crim. Pro., § 913-c), subject to release therefrom as in the case of “ adult ” offenders (Code, § 913-d), and these include Elmira Reception Center (Correction Law, § 61) or Elmira Reformatory (id., § 64).

The year after Salisbury was here, the Supreme Court decided Matter of Gault (387 U. S. 1 [1967]) holding a juvenile delinquent in a Juvenile Court in Arizona was entitled to due process substantially similar to that which would underlie criminal charges against an adult. (See, also, Specht v. Patterson, 386 U. S. 605 [1967]).

It seems fair to read Gault as Justice Stewart described it in dissent, that it tended to impose on juvenile courts the “ restrictions that the Constitution made applicable to adversary criminal trials ” (p. 78).

To be consistent, this procedural requirement should apply as well to the substantive definition of acts committed by juveniles which are made the subject of corrective or penal discipline.

It is true, of course, as the People argue, that the protection of the young permits some variation in statutory and other legal arrangements affecting them. Obscenity in its impact on children is one example (Ginsberg v. New York, 390 U. S. 629, [1968]; Bookcase, Inc. v. Broderick, 18 N Y 2d 71, 75, app. dsmd. sub nom. Bookcase, Inc. v. Leary, 385 U. S. 12; People v. Kahan, 15 N Y 2d 311, 312). But, as the court held in People v. Munoz (9 N Y 2d 51, 60), an act made an offense for a juvenile and not for an adult is open to attack as discriminatory.

Some guidance on the general sufficiency of ‘ ‘ morally depraved or is in danger of becoming morally depraved” (§ 913-a, subds. [5], [6]) is possible by reading Giaccio v. Pennsylvania (382 U. S. 399 [1966]) where the statute prohibiting the discharge of firearms at another person permitted the jury to assess costs against the accused, even if acquitted, under some circumstances from which the jury might infer misconduct.

The trial court, in interpreting the statute, charged this could be done if the jury, acquitting defendant on the crime charged, nevertheless found defendant guilty of misconduct “ of some kind as a result of which he should be required to pay some penalty ” (p. 404). This was held too vague to justify even the imposition of costs (see opn., Black, J., 382 U. S. 399, 404).

The decision of this court invalidating the vagrancy statute (Fenster v. Leary, 20 N Y 2d 309 [1967]) throws collateral light on some theoretical aspects of the present cases. See, also, on this point People v. Munoz (9 N Y 2d 51, supra).

Although, as it has been noted, it is unnecessary to reconsider the general validity of the statute or presently overrule Salisbury, in view of the tightening of due process requirements in this type of juvenile proceeding authorizing the judicial option of confinement in institutions which serve also for the treatment of persons convicted of felony, particular care should be taken that the charge has substance based on acts which point to grave danger to youth and is not merely a compliance with form; and that the conduct inquired into is seriously harmful and not merely an exaggerated manifestion of intra-family parent-child conflict.

A decision of the Appellate Division rather closely following the enactment of the wayward minor statute suggests this care (People ex rel. Deordio v. Palmer, 230 App. Div. 397 [1930]). Among other things, it was there held a determination under section 913-a could not be predicated alone on a plea of guilty. But see, also, People ex rel. Pogoda v. Superintendent (217 App. Div. 763 [1926]).

It is not easy to define this for all kinds of situations and, of course, the draftsmen of the statute in 1923 (L. 1923, ch. 868) had difficulties intrinsic to the objective sought. Part of the trouble in the resolution of the draft is “morally depraved”, a term which probably changes in meaning for each generation. The term is one not readily visualized. Even less easily palpable is ‘ ‘ danger of becoming ’ ’ morally depraved.

A dictionary definition of “ depraved ” is “ marked by debasement, corruption, perversion or deterioration ” (Webster’s Third New International Dictionary [1961]). These characteristics, each suggesting regression, are undoubtedly rare in young people.

The term “ morally depraved ” is used conjunctively in specifications (5) and (6) of section 913-a; in one instance combined with the desertion of home and in the other with disobedience to parents. When either of these things is shown “ and ” there is moral depravity or “danger” of it, the youth may be “ deemed ” a wayward minor.

In the three present cases, one or the other of the conjunctive conditions may be deemed established, principally disobedience to parental commands, but the establishment of moral depravity, in addition, is open to valid objection and on analysis the proof of this necessary statutory ingredient is insufficient.

In Joan Klein’s case, the 18-year-old girl was in conflict with her father concerning her conduct. She had formed an attachment to a man of 30 to whom her parents objected. Her father’s complaint to the court stated she “ may have indulged in sexual intercourse with her boy friend, has a key to the apartment of her boy friend ’ ’.

There is no proof of sexual intercourse and defendant herself not only denied it but stated she did not believe in sexual intercourse before marriage. The key to her friend’s apartment she explained as having because she had delivered pictures there on one occasion.

The complaint also alleged that she ‘‘ stayed away from home for the last three days ’ ’; but defendant testified she stayed at the home of married people, whom she named, on one of the two nights she was not in her parents ’ house; and spent the other alone at a hotel she named. For the rest, she testified she worked at two jobs and had completed high school. It is a fair appraisal of this record to say it shows the defendant in growing conflict with her parents and thus disobedient to them within the terms of the statute; but it fails fairly to establish a reasonable basis to say she is either morally depraved or in danger of becoming so.

In John Fuller’s case, his mother complained that he did not obey her, stayed out late, associated with people of whom she did not approve and was abusive to her. At time of trial defendant was between 17 and 19 years old. His mother also testified that she had found narcotic implements in the house; but since her son had been in custody on this present charge for a week before she found the items and other people lived in the house, the court refused to receive this evidence.

For the rest, she testified she believed be used narcotics because of his ‘ ‘ actions and everything ’ ’ and also that sometimes he stayed out all night but had told her he was staying at a friend’s house.

Defendant denied the use of drugs and stated he had been working in a hospital and had left this job on his own in order to seek a new position. He was adjudicated a wayward minor June 17, 1966. A Judge, other than the Trial Judge, imposed sentence on July 26, some five weeks after the adjudication. Counsel for defendant told the court at sentence that the mother, who had made the complaint, said “he’s working and he’s at home now and behaving himself ’ ’.

Nevertheless, defendant was sentenced to Elmira Reception Center. Thus, with no proof of any substantive act except disobedience and being abusive, defendant has been committed to an institution commonly used for people convicted of felony. The proof does not justify the adjudication.

In John Allen’s case, the proof is adequate that defendant was addicted to narcotic drugs. The charge made by his mother included this and that he “ steals money from the home ”, keeps “ late hours ” and refuses to obey her commands ; that he was morally depraved or in danger of becoming so. Proof of stealing of money from the home was that on one occasion he took 15 cents.

At the time of the charge in September, 1966, defendant was 20 years old; he is now over 22 years old. He was adjudicated a wayward minor and sentenced to Elmira Reception Center. Essentially defendant is a narcotics addict in need of treatment rather than a wayward minor under the present charge, and the People, on argument here, suggest remission to consider placement for treatment under article 9 of the Mental Hygiene Law.

The judgments in Klein and Fuller should be reversed and the complaints dismissed; and in Allen, the judgment should be reversed and the charge remitted to the Criminal Court, Kings County, to consider treatment under article 9 of the Mental Hygiene Law.

Scileppi, J. (dissenting in part).

In my opinion the facts as found by the trial courts and unanimously affirmed by the Appellate Term were legally sufficient in each of these cases to establish “moral depravity” or the “danger of becoming morally depraved ”. It must be remembered that section 913-a of the Code of -Criminal Procedure is designed to protect youngsters against their own pernicious conduct and, while one who is adjudicated a wayward minor thereunder is subject to incarceration, the essential purpose of any judicial action taken after the adjudication is rehabilitation and not punishment. The entire fabric of this statute, which deals with errant youths, is woven around the concept that the courts will exercise the necessary legal means to protect them from their own moral weakness, lawless tendencies and personal indiscretions in order to protect them from inflicting more serious damage on themselves in the future. Hence, I find nothing unfair or unjust in applying the provisions of this salutary statute to accomplish this purpose when, as in these cases, a parent seeks the aid of the court to correct the ways of an irresponsible child who is in fact morally depraved or is in danger of becoming so.

To my mind, there can be no doubt that the provisions of section 913-a of the Code of Criminal Procedure apply to the proven conduct of the youngsters in these cases.

In the Klein case, the proof established not only that the defendant, an 18-year-old girl, had a strong attachment for a man of 30 years but that she had a key to his apartment; that she stayed away from home continuously for three days and two nights and that she otherwise willfully disobeyed the reasonable requests of her parents to come home early and to stop staying away from home overnight. As a result of her disobedience, there was constant conflict with her father concerning her conduct. While it is true that the parents’ suspicion that she had sexual intercourse with this man is not proof thereof, the totality of the circumstances, in my opinion, justifies the finding that this girl was in danger of becoming morally depraved whether she actually had sexual intercourse or not. The court was not obliged to accept her self-serving explanation that she stayed at a home with married people whom she named but significantly did not offer to produce as witnesses. Nor was the court obliged to accept her further explanation that she spent the other night alone at a hotel which she merely named without offering other proof to support this explanation. The trial court apparently was not willing to be so naive as to close its eyes to the realities of such a situation and could find, as it did, that her explanations were not worthy of belief. Thus, considering all the circumstances, the court had ample evidence before it upon which to find that this girl was in danger of becoming morally depraved and, therefore, adjudged her a wayward minor under section 913-a of the Code of Criminal Procedure (People v. Salisbury, 18 N Y 2d 899).

The defendant Fuller was about 18 years of age. At the time of trial he was unemployed and he had willfully disobeyed reasonable requests of his mother to come home at reasonable hours; he was abusive to her (telling her to shut up and cursing at her); he often stayed out late; he associated with people of whom his mother did not approve; and she found narcotic implements in the house. Evidence of the narcotic instruments, however, was excluded at the trial since there was proof that other persons lived in the house a week prior to their discovery. The mother, however, also testified that she had reason to believe that her son used narcotics because of his unusual actions. She stated that he would lock himself in the bathroom for awhile and, when he came out, he appeared to be “ different ”—indieating that she detected that there was something radically wrong with his appearance and his actions. She also testified that her son stayed out all night about once a week, although he claimed he stayed at a friend’s house. However, he apparently never offered to produce the friend to support this explanation. Moreover, defendant acknowledged that following his arrest he was treated for venereal disease which is of some significance, I suggest, in considering whether he was morally depraved or in danger of becoming so.

The provisions of section 913-a of the Code of Criminal Procedure are designed to protect youngsters from engaging in the kind of dangerous and irresponsible conduct proven in each of these cases; conduct which often results in tragic and permanent injury. To hold that the facts herein are insufficient as a matter of law to sustain a finding that these youngsters were either morally depraved or in danger of becoming morally depraved is to disregard the basic purpose and design of the statute.

In my opinion, the totality of the circumstances in both Klein and Fuller furnished sufficient legal evidence to warrant the adjudications and this court should not disturb the facts found below (People v. Leonti, 18 N Y 2d 384).

The court in all three cases imposed a perfectly legal sentence (Correction Law, § 61) and the fact that Fuller was said to be working at the time of sentence and that he was then behaving in no way rendered the sentence illegal. Notwithstanding this information, the court had the discretion to impose the sentence it did, and it cannot be said that there was an abuse of that discretion.

As I have indicated, these cases come within our ruling in People v. Salisbury (supra), and I find nothing said in Matter of Gault (387 U. S. 1) which mandates a reversal in any of these eases. However, since the District Attorney has recommended that the case of People v. Allen be remitted for further proceedings in the trial court, I have acceded to that recommendation and vote to reverse solely on that ground. Because of this, I have not referred to the facts in that case.

Accordingly, the judgments of conviction in Klein and Fuller should be affirmed and the judgment of conviction in Allen reversed and remitted for further proceedings.

In People v. Allen: Chief Judge Fuld and Judges Burke, Keating, Breitel and Jasen concur with Judge Bergan; Judge Soileppi concurs solely upon the District Attorney’s recommendation.

In People v. Fuller and People v. Klein: Chief Judge Fuld and Judges Burke, Keating, Breitel and. Jasen concur with Judge Bergan; Judge Soileppi dissents and votes to affirm in a separate opinion.

In People v. Allen: Judgment reversed and case remitted to the Criminal Court of the City of New York, Kings County, for further proceedings in accordance with the opinion herein.

In People v. Fuller and People v. Klein: Judgments reversed and the complaints dismissed.  