People v. Lewis , 235 A.D. 559 ( 1932 )

Rhodes, J.

The questions here presented are of far-reaching importance. The appellant, by a decision of the Children’s Court, has been adjudicated a delinquent. The acts which he is alleged to have committed would have been felonies if perpetrated by an adult. The Children’s Court Act of the State of New York, section 2, defines an adult as a person sixteen years of age or over. In Children’s Court appellant was represented by no attorney, but his mother and a clergyman were present in his behalf. No guardian ad litem was appointed for him, although section 22 of the Children’s Court Act provides that in any stage of the proceeding the judge may, in his discretion, appoint any suitable person to be such guardian. No advice appears to have been given by the judge concerning the advisability, of counsel for the appellant, nor any other suggestion relative to safeguarding his rights. He was questioned by the judge concerning the occurrences and in connection therewith other boys alleged to have been participants in the acts charged were examined by the judge separately, but not in the presence of the appellant nor as part of the record in his case, and, thereafter, judgment of delinquency was pronounced against him.

Conceding, for the purpose of argument, that these safeguards are not required in this proceeding either by Constitution or by statute, the fact remains that an adult on trial for the same acts if charged as a felony would, under the Constitution and by statute, be entitled to be advised of his rights, to be represented by counsel and to be confronted by the witnesses against him, and he would not be required to give testimony against himself. (Code Crim. Proc. § 8.) These are fundamental concepts upon, which our system of government. is based. His confession would not be sufficient to warrant his conviction without additional proof that the crime charged had been committed. (§ 395.) The Children’s Court Act and also section 486 of the Penal Law recognize a distinction between a neglected child and a child charged with delinquency. When charged with delinquency, he is certainly on trial, and by section 27 of the Children’s Court Act, if adjudicated a delinquent, the commitment may, in the discretion of the court, continue during the minority of such child and after he becomes sixteen years of age and until such time as the court shall order his release, discharge or transfer. It will thus be seen that it is possible under the statute to commit a delinquent child and restrain him of his liberty subject to the control of the court for a period, in some cases, of at least fourteen years. Clearly in such a situation the rights of an infant should be as carefully safeguarded as those of an adult. As stated by Judge Crane in People v. Fitzgerald (244 N. Y. 307), construing the former Children’s Court Act of the city of Buffalo: “ The proceeding resulted in a conviction and a sentence — call it what we will — which deprived the boy of his liberty.”

Section 14 of the act provides that “ where-the method of procedure in a case or proceeding in which the court has jurisdiction is not provided in this act, such procedure shall be the same as provided by law, or by rules formally adopted by the court within the scope of this act.” If it be argued that all provisions of the Penal Law or Code of Criminal Procedure or other acts inconsistent or repugnant to any provisions of the Children’s Court Act shall be considered inapplicable (See § 45), and that section 18 of article VI of the Constitution and the Children’s Court Act, adopted pursuant thereto, contemplate solely the welfare of the child, and that placing him in custody is designed to promote his welfare by discipline and restraint, the same argument may be addressed to a sentence imposed upon a person convicted of a felony, that is, that the sentence of conviction is not designed simply as a punitive or vindictive measure, but that it is designed with a view to the reformation of the person convicted.

It may be stated as a general proposition that the welfare of the child can best be promoted by carefully safeguarding his rights upon the inquiry which seeks to determine the fact of delinquency. Such fact should be established by satisfactory evidence whether or not such evidence comes within the category of what is known and described in the Code of Criminal Procedure as competent evidence. It was said in People v. Fitzgerald (supra) that “ where, therefore, a child is arrested and charged with being a delinquent child because it has committed an offense which would be a crime in an adult, that, offense must be proved, and proved by competent evidence.” It is true that this statement had reference to the Children’s Court Act of Buffalo which expressly required that the act be established by “ competent evidence,” while in the general act under which the proceeding before us was instituted the requirement that the charge be proved by competent evidence is omitted, nevertheless, it is self evident that the act must be proved, which necessarily means that it must be established at least by proper and sufficient evidence.

In view of the wide disparity between the informal procedure outlined under the Children’s Court Act and the strictness of the procedure established by the criminal law as to adults, there should be no uncertainty as to the facts upon which the court bases its decision. The determination of the powers and limitations of the Children’s Court, when not clearly defined by the act, must depend upon the decision of specific questions as they arise, otherwise any attempted enumeration as to such powers and limitations would be obiter.

What is here said involves no criticism of the judge of the Children’s Court in the case before us. The Children’s Court Act is comparatively new; it is general and in many instances vague in its terms and provisions, and there are few precedents for guidance.

Undoubtedly the judge of the Children’s Court made a disposition of the case which he conscientiously believed to be for the welfare and best interest of the child. The judgment, however, is supported by no evidence in the record received in appellant’s presence except his uncorroborated admission. This seems inadequate and insufficient in view of the gravity of the charge. (See Matter of Madik, 233 App. Div. 12.) It is apparent that other supporting evidence was readily available.

In the interest of justice the judgment should be reversed and a new trial granted.

All concur, except Van Kirk, P. J., who dissents, with a memorandum in which Hinman, J., concurs.