People v. Ahalt

• Decision Date: 13 May 1988
• Citation: 139 Misc.2d 863,529 N.Y.S.2d 250
• Parties: The PEOPLE of the State of New York v. Robert AHALT and Carl Campbell, Defendants.
• Court: New York Supreme Court

Page 250

529 N.Y.S.2d 250

139 Misc.2d 863

The PEOPLE of the State of New York v. Robert AHALT and Carl Campbell, Defendants.

Supreme Court, Monroe County.

May 13, 1988.

Howard R. Relin, Dist. Atty., Charles Siragusa, First Asst. Dist. Atty., for the People.

Culver K. Barr, Rochester, for defendant Ahalt.

Felix V. Lapine, Rochester, for defendant Campbell.

MARK, Justice.

The defendants were charged with eleven counts of Murder 2nd Degree, one count of Arson 2nd Degree and two counts of Arson 3rd Degree, in what were described as the most sensational crimes in the history of this community. The defendant Robert Ahalt made an application pursuant to Criminal Procedure Law Section 320.10 to waive a jury trial, and for the reasons that follow that motion was denied.

Each defendant had executed a statement in which he denied any involvement in those crimes and also placed the entire blame for their commission on his codefendant. This is exactly the type of situation in which Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 on remand People v. Cruz, 70 N.Y.2d 733, 519 N.Y.S.2d 959, 514 N.E.2d 379, mandates separate trials. Thus, the defendants' application for severances were granted, but only to the extent that the defendants would be tried simultaneously before separate juries, ¹ and over the objections of the defendants. This dual jury concept had recently been sanctioned, albeit without overwhelming approbation, ² by the Appellate Division, 2nd Department, in People v. Ricardo B, 130 A.D.2d 213, 518 N.Y.S.2d 843. ³

After very elaborate planning for the double jury trial had been completed, and just prior to the selection of the first jury, the defendant made this motion. He cited as his basis that his codefendant had committed perjury, that there had been excessive pre-trial publicity, making it impossible to select a fair and impartial jury and that the court had denied his applications for a change of venue and for a severance. The defendant also requested that another attorney be substituted for his present attorney, because the latter disagreed with his decision to proceed with a bench trial.

Despite the fact that the jury panel had already assembled in the courtroom for the selection of this defendant's jury, the defendant's request was timely ( People v. McCarthy, 121 Misc.2d 1086, 469 N.Y.S.2d 569; People v. Caldwell, 107 Misc.2d 62, 437 N.Y.S.2d 829).

Section 320.10 provides in its pertinent parts as follows:

(1) "... the defendant ... may at any time before trial waive a jury trial and consent to a trial without a jury....

(2) ... The court must approve the execution and submission of such waiver unless it determines that it is tendered as a stratagem to procure an otherwise impermissible procedural advantage or that the defendant is not fully aware of the consequences of the choice he is making...."

Therefore, a trial court's discretion to deny an application for a bench trial is limited to a finding that the application is tendered as a stratagem to procure an otherwise impermissible procedural advantage or that the defendant is not fully aware of the consequences of the choice he is making ( People v. Firestone, 111 A.D.2d 696, 490 N.Y.S.2d 513).

Both grounds in the statute justifying denial of the defendant's demand for a non-jury trial were present here, and will be considered in inverse order.

First, the defendant's attempted waiver did not appear to be made knowingly, intelligently and voluntarily as the statute required ( People v. Logue, 115 A.D.2d 285, 495 N.Y.S.2d 826, lv. to app. den. 67 N.Y.2d 886, 501 N.Y.S.2d 1037, 492 N.E.2d 1244; People v. Cannady, 127 Misc.2d 783, 487 N.Y.S.2d 294).

The allegation that the codefendant committed perjury, presumably a reference to that defendant's statement, bears no relation to a request for a non-jury trial, and certainly affects this defendant's purported waiver ( Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 [Pa]--defendant's expressed reason for waiving a jury trial to maneuver for a judge he thought might be more lenient suggested less than a knowing, intelligent and voluntary waiver for the relinquishment of an important constitutional right; ⁴ see People v. DiConstanzo, 31 A.D.2d 250, 296 N.Y.S.2d 576, affd., 26 N.Y.2d 1014, 311 N.Y.S.2d 507, 259 N.E.2d 925). There was extensive pre-trial publicity, as claimed by the defendant, and while this might possibly be legitimate ground for waiver (see People ex rel Rohrlich v. Follette, 20 N.Y.2d 297, 282 N.Y.S.2d 729, 229 N.E.2d 419), its effect had not yet been ascertained, because jury selection had not commenced ( People v. Smith, 63 N.Y.2d 41, 479 N.Y.S.2d 706, 468 N.E.2d 879, cert. den., 469 U.S. 1227, 105 S.Ct. 1226, 84 L.Ed.2d 364, reh. den., 471 U.S. 1049, 105 S.Ct. 2042, 85 L.Ed.2d 340; People v. Boudin, 87 A.D.2d 133, 451 N.Y.S.2d 153). The argument that the court had denied the defendant's motion for a change of venue was not convincing, since no such motion had been made, nor could it be entertained because of lack of jurisdiction (CPL Sec 230.20; see People v. Parker, 60 N.Y.2d 714, 468 N.Y.S.2d 870, 456 N.E.2d 811). The defendant's final contention that his application for a severance had been rejected was belied by the fact that the severance had in fact been granted, but in the form of a dual jury trial (People v. Ricardo B, supra ).

In summary, the reasons advanced by the defendant were such that a knowing, intelligent and voluntary waiver was not demonstrated (compare People v. Davis, 49 N.Y.2d 114, 424 N.Y.S.2d 372, 400 N.E.2d 313, on remand, 91 A.D.2d 948, 458 N.Y.S.2d 563--defendant was intelligent, articulate and knowledgeable of the criminal justice system, asserted the right in advance of trial in a timely and unequivocal fashion, reasserted his right at every opportunity [four additional times including the day of trial] and was advised by the court and his assigned counsel of the consequences of waiving a jury trial).

Second, the defendant's motion to waive a jury trial was a stratagem to procure an otherwise impermissible procedural advantage (People v. Firestone, supra ).

This Court, because of the protracted and complicated pre-trial proceedings, indicated that as a matter of personal conscience to avoid even the appearance of bias it would recuse itself ⁵ (People v. Smith, supra; People v. Montpeirous, 133 A.D.2d 709, 519 N.Y.S.2d 876; People v. Zappacosta, 77 A.D.2d 928, 431 N.Y.S.2d 96), although not required to do so ( People v. McKinley, 124 A.D.2d 752, 508 N.Y.S.2d 253; People v. Lombardi, 76 A.D.2d 891, 428 N.Y.S.2d 709). Even without recusal, the charges and evidence were so complex that a joint jury and non-jury trial ⁶ would not be feasible (People v. Firestone, supra ), and the defendant, of course, would not...