35 A.D.2d 584, People v. P.

Citation:35 A.D.2d 584, 315 N.Y.S.2d 398
Party Name:People v. P.
Case Date:July 20, 1970
Court:New York Supreme Court Appelate Division, Second Department

Page 584

35 A.D.2d 584

315 N.Y.S.2d 398

The PEOPLE, etc., Respondent,

v.

David P. (Anonymous), Appellant.

Supreme Court of New York, Second Department

July 20, 1970.

Before HOPKINS, Acting P.J., and MUNDER, MARTUSCELLO, BRENNAN and BENJAMIN, JJ.

MEMORANDUM DECISION.

Appeal by defendant from a judgment of the County Court, Nassau County, rendered June 20, 1968, adjudging him a youthful offender, after a nonjury trial, and imposing sentence, with execution thereof suspended.

Judgment reversed, on the law, and case remitted to the County Court for a new trial before a jury. The findings of fact below have been affirmed.

This court has recently held in People v. Michael A.C., 32 A.D.2d 554, 300 N.Y.S.2d 816, affd. 27 N.Y.2d 79, 313 N.Y.S.2d 695, 261 N.E.2d 620, dec. July 2, 1970 that subdivision 3 of section 913--g, and section 913--h, of the Code of Criminal Procedure, insofar as they [315 N.Y.S.2d 399] require a defendant to consent to a summary trial without a jury in order to render him eligible for youthful offender treatment, are unconstitutional (cf. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491; Matter of Gault, 387 U.S. 1, 12, 87 S.Ct. 1428, 18 L.Ed.2d 527; Matter of Saunders v. Lupiano, 30 A.D.2d 803, 292 N.Y.S.2d 44). Consequently, the judgment must be reversed and the case remitted to the trial court for a new trial before a jury.

Inasmuch as the jury will not be the trier of the facts as to the guilt or innocence of the defendant as a youthful offender, the trial court should submit special questions to the jury, requiring it to make specific findings or answers,

Page 585

as to defendant's guilt or innocence regarding each...

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