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06/01/88 the People of the State of v. Taylor Fitzgerald

June 1, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TAYLOR FITZGERALD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

524 N.E.2d 1190, 171 Ill. App. 3d 218, 121 Ill. Dec. 142 1988.IL.860

Appeal from the Circuit Court of Cook County; the Hon. E. C. Johnson, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. McNAMARA and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Following a bench trial, defendant, Taylor Fitzgerald, was convicted of attempted murder and armed robbery. Defendant was sentenced to a term of six years' imprisonment in the Illinois Department of Corrections. On appeal, defendant contends that: (1) he was improperly tried as an adult pursuant to the automatic juvenile transfer statute (Ill. Rev. Stat. 1985, ch. 37, par. 702-7(6)); and (2) he was not proven guilty beyond a reasonable doubt of attempted murder and armed robbery. Defendant later filed a supplemental brief on appeal in which he alleges that he was denied fundamental fairness, due process and equal protection of the law, because at his sentencing hearing the trial court considered only the Dispositions available under section 5-1-1 et seq. of the Uniform Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-1-1 et seq.), and that he was denied effective assistance of counsel. We affirm.

On October 22, 1983, at approximately 3 a.m., Wendy Weaver arrived at her apartment building located at 2514 West Van Buren Street. Upon entering the vestibule of the building, Weaver observed three men standing there. Weaver recognized defendant as a man she knew from around the neighborhood. Weaver then left the vestibule and proceeded to her apartment.

Thereafter, at approximately 3:30 a.m., the victim, Ned Sterling, entered the vestibule of Weaver's building. Sterling, who is also Weaver's boyfriend, proceeded to the elevator. As Sterling pushed the elevator call button, a silver-barrelled revolver was placed at his head by defendant. Sterling was told not to move and was backed up against the elevator doors. At that point, Sterling saw that there were three men present. Sterling, who was familiar with the area, recognized defendant, who was standing directly in front of Sterling approximately an arm's length away and holding a gun to Sterling's head.

At the request of one of the other two men present, Sterling surrendered his money and his keys. The two men then searched Sterling's pockets while defendant held the gun to Sterling's forehead. After searching Sterling's pockets, the two men left the area while defendant continued holding the gun to Sterling's head. Sterling then watched as defendant began to squeeze the trigger of the gun. Sterling instinctively jerked his head to the side as the gun went off. The bullet went through Sterling's hair, causing it to burn. Defendant then ran from the building, and Sterling escaped to Weaver's apartment.

Upon arriving at Weaver's apartment and hearing of Sterling's misfortune, Weaver phoned the police. Weaver then left her apartment and went to the apartment of defendant's girlfriend, who also lived in the building. Weaver informed the woman of what had happened to Sterling and demanded the return of Sterling's money and keys. Later that day, Sterling's keys were returned. Thereafter, on October 29, 1983, Sterling identified defendant as his assailant.

We initially address defendant's argument that he was tried and convicted in violation of the Juvenile Court Act (Act) (Ill. Rev. Stat. 1983, ch. 37, par. 701-1 et seq.), because the indictment against him failed to specify that the crime of armed robbery had been committed with a firearm.

At the time of defendant's indictment, section 702 -- 7(6) provided in relevant part:

"(6)(a) The definition of delinquent minor under Section 2 -- 2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, rape, deviate sexual assault or armed robbery when the armed robbery was committed with a firearm. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended.

(6)(b) If before trial or plea an information or indictment is filed which does not charge an offense specified in paragraph (a) of subsection (6) of this Section, the State's Attorney may proceed on the lesser charge or charges but only in Juvenile Court pursuant to the other provisions of the Juvenile Court Act, unless prior to trial the minor defendant knowingly and with advice of counsel waives, in writing, his ...


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