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ALBANY — An upstate Family Court judge has held that uncharged lesser included offenses may be considered in a juvenile delinquency proceeding without the court’s being asked to consider them by either side.

The ruling by Judge W. Dennis Duggan of Albany County came in a case in which a juvenile was charged with a sex crime the facts did not fit.

In fact, the judge said, the youth had committed other crimes, including one more serious than the one he was charged with. Since the youth could not be found guilty of an equally serious or more serious crime than the one charged, Judge Duggan exercised sua sponte discretion to consider an option neither party requested. (The decision appeared on May 4, page 20, column 3).

Matter of Coty M., D-1355-03, arose from a delinquency proceeding in which the court found that a boy had engaged in multiple acts of forced sex with a 14-year-old girl. Judge Duggan said the offenses, if committed by an adult, would have amounted to first-degree forcible rape and sodomy.

The youth, however, was not charged with first-degree rape and sodomy, but with third-degree rape and sodomy on the theory that the victim was incapable of consent because she was under 17.

Therein lay the problem. Under Penal Law §§130.25[1] and 130.40[1], third-degree rape and sodomy can be charged when the victim is incapable of consent for a reason other than age, such as mental disability, physical helplessness or mental incapacitation.

There was no allegation that she was forcibly raped or that she was the victim of a “date rape” — although the judge said she was both.

“This is fatal to the specific crimes charged,” Judge Duggan wrote, referring to the uncharged date rape. “The court is not authorized to substitute one crime for another of equal gravity because the Legislature did not authorize it and the Constitution would prohibit such a violation of due process notice requirements.”

Judge Duggan said he obviously could not substitute the greater crimes — first-degree rape and sodomy — for the lesser offenses. Nor could he tack on a date rape count to the third-degree charges because “there is no such thing in the law as an ‘equal included offense,’” the judge said.

The court found only one way to salvage the case.

Judge Duggan said that since every element of the misdemeanor of sexual misconduct is also an element of third-degree rape and sodomy, the misdemeanor is a lesser included offense to the felony with which the juvenile was charged.

The Court of Appeals in Matter of Dwight M., 80 NY2d 792 (1992), has held that Family Court has the authority to consider lesser included offenses even though the Family Court Act is silent on the issue.

“The question to be answered here is, when should the court exercise sua sponte discretion when neither party has requested that a lesser included offense be considered?” Judge Duggan wrote.

Despite finding that sua sponte consideration of a lesser included offense is “contrary to the spirit and letter of” the Family Court Act, and “despite all of this court’s misgivings about considering an unnoticed lesser included offense,” he did so.

Judge Duggan said the unusual treatment was warranted by the facts of the case, which support guilt on first-degree rape and first-degree sodomy and where both sides said the key issue was lack of consent rather than incapability of consent.

John J. Doherty of Cohoes appeared for the respondent. Assistant County Attorney Darius Shahinfar appeared for the petitioner.

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