Tschornyi v. County Court

283 A.D. 910, 130 N.Y.S.2d 146, 1954 N.Y. App. Div. LEXIS 5710

Opinion

Appeal from an order of the Supreme Court, Tompkins County for relief pursuant to article 78 of the Civil Practice Act. Appellant was indicted under three counts for crimes of grand larceny, first degree. He was born on January 29, 1935, and at the time of his arraignment on May 15, 1953, he was something over eighteen years of age. His argument here is that he should be treated by the County Court as a youthful offender because at the time of the alleged commission of the crimes set forth in the indictment he was over the age of sixteen years and under the age of nineteen years, and had never been convicted of a felony. No recommendation was made to the County Court by either the Grand Jury or the District Attorney that appellant should be investigated for the purpose of determining whether he was eligible to be adjudged a youthful offender. The County Court on its own motion directed that appellant be investigated for that purpose under section 913-g of the Code of Criminal Procedure. The probation officer of the County of Tompkins made some investigation and reported to the court, and the court thereafter denied the application of appellant to be adjudged as youthful offender and directed him to plead to the indictment. Appellant takes the position here apparently that the investigation of appellant was only superficially made and that hence the order should be reversed. The whole matter, we think, was discretionary with the County Court and the latter had a right to weigh whatever facts were available with reference to the crimes charged, the previous reputation of the defendant and his attitude towards society, and on such basis exercise his discretion. Without passing upon the propriety of the method of review here involved we think appellant failed to make out a case for interference by this court at this stage of the matter. Order affirmed, without costs. Poster, P. J., Bergan, Coon and Imrie, JJ., concur.