Opinion
July 20, 1978
Appeal from a judgment of the County Court of Albany County, rendered March 25, 1977, upon a verdict convicting defendant of the crime of assault in the third degree, a class A misdemeanor. Judgment affirmed. No opinion. Sweeney, J.P., Staley, Jr., Larkin and Herlihy, JJ., concur; Mikoll, J., concurs in part and dissents in part in the following memorandum.
I concur with the majority as to the legal sufficiency of the evidence to convict defendant of assault third. In my view, however, the defendant is entitled to be adjudicated a youthful offender. The defendant was indicted for assault in the third degree and found guilty thereof after trial. This is his first criminal conviction. Under the same circumstances, any other youth appearing in a local criminal court would, by the mandate of CPL 720.20 (subd 1, par [b]), be entitled to youthful offender treatment. The section permits no discretion to the sentencing Judge in such a case. To deny defendant the same consideration on the basis of the unfortunate happenstance of having been indicted for a misdemeanor and standing trial in a superior court rather than a local criminal court is to deny him equal protection of the law (NY Const, art I, § 11; US Const, 14th Amdt, § 1). Classifications must rest on real and not feigned differences and the distinction in treatment of defendant must have some relevance to the purposes for which the classification is made. People v Santiago ( 51 A.D.2d 1), People v Kalicki ( 49 A.D.2d 1032) and People v Drayton ( 47 A.D.2d 952) are inapposite as they involve defendants indicted for felonies. The distinction in treatment of such defendants from the case at hand is clearly discernible.