People v. Davidson

Decision Date14 March 1988
Citation136 A.D.2d 66,525 N.Y.S.2d 855
PartiesThe PEOPLE, etc., Respondent, v. James DAVIDSON, Appellant.
CourtNew York Supreme Court — Appellate Division

Snitow & Pauley, New York City (Franklyn D. Snitow, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Ivan Vogel and Gary Fidel, of counsel), for respondent.

Before LAWRENCE, J.P., and KUNZEMAN, KOOPER and SPATT, JJ.

KOOPER, Justice.

On this appeal from the denial of the defendant's motion pursuant to CPL 440.10(1)(h), we are called upon to determine whether a written jury waiver instrument was executed in conformity with applicable constitutional and statutory requisites (see, N.Y. Const., art. I, § 2; CPL 320.10[2] ). For the reasons that follow, we conclude that the circumstances surrounding the execution of the jury waiver fail to establish compliance with the foregoing requisites and, accordingly, we reverse the order of the Supreme Court and vacate the defendant's judgment of conviction.

I

By Queens County Indictment No. 544/84, the defendant was charged with two counts of robbery in the second degree and one count of assault in the second degree arising from a 1983 incident in which a woman was accosted and robbed by two assailants in her Queens apartment building. On August 6, 1984, the defendant executed a written waiver of his right to a trial by jury. 1 After a bench trial, the defendant was convicted of one count of robbery in the second degree and assault in the second degree. This court subsequently affirmed the defendant's conviction (see People v. Davidson, 123 A.D.2d 782, 507 N.Y.2d 257, lv. denied 69 N.Y.2d 826, 513 N.Y.S.2d 1033, 506 N.E.2d 544).

Thereafter, the defendant moved pursuant to CPL 440.10(1)(h) for an order vacating his judgment of conviction. In his affidavit, the defendant averred that before the Trial Justice entered the courtroom his attorney handed him a form and instructed him to sign it without explaining the significance of the jury waiver instrument to him; that his attorney urged him to execute it so as to "save time"; that the court did not question him with regard to the waiver so as to ensure that his action was knowing and intelligent; and that the waiver was not executed in "open court" as required by the N.Y. Constitution, article I, § 2 and CPL 320.10(2).

In opposition to the defendant's motion, the People submitted an attorney's affirmation executed by an Assistant District Attorney without personal knowledge of the trial proceedings, in which it was argued, inter alia, that it could be "inferred" that the defendant's waiver was knowing and voluntary in that he had one prior felony conviction and was, "to a limited extent", knowledgeable of the workings of the criminal justice system, and that the defendant was quite intelligent and articulate as evidenced by his trial testimony and maintenance of his innocence at sentencing. The People did not specifically address the defendant's contention that the waiver was not executed in "open court", although on appeal, the People now concede that the record is "not clear" with respect to this element of the waiver procedure.

Significantly, the sole reference in the record made to the execution of the jury waiver prior to the commencement of defendant's trial occurred when the court clerk called the case, at which time he stated that "the jury waiver has already been signed, Your Honor". Moreover, there is nothing in the record which indicates that the court questioned the defendant in connection with the waiver in order to ensure that his actions were knowingly and understandingly undertaken or that the waiver itself was executed in open court. 2

The Supreme Court denied the defendant's motion to vacate his judgment of conviction.

II

Pursuant to New York Const. article I, § 2, a jury waiver must be "a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense". CPL 320.10(2) similarly provides, in pertinent part, that "[s]uch waiver must be in writing and must be signed by the defendant in person in open court in the presence of the court, and with the approval of the court".

Prior to the adoption of the foregoing constitutional provision, "it was not possible for a defendant in a criminal case to waive his right to a trial by jury" ( People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297, 300, 282 N.Y.S.2d 729, 229 N.E.2d 419, citing Cancemi v. People, 18 N.Y. 128; People v. Cosmo, 205 N.Y. 91, 98 N.E. 408). The rationale underlying these decisions "was that the right to a trial by jury was so fundamental and so essential to the protection of the defendant's rights that it could not be waived" ( People ex rel. Rohrlich v. Follette, supra, at 300, 282 N.Y.S.2d 729, 229 N.E.2d 419). Indeed, the Court of Appeals has stated that "[t]he history of our jurisprudence reveals that the fundamental right is the right to a trial by jury" ( People ex rel. Rohrlich v. Follette, supra, at 301, 282 N.Y.S.2d 729, 229 N.E.2d 419). The Rohrlich court further observed that "the present constitutional amendment carries forth that philosophy to the extent that it makes no provision for waiver of a right to a trial by jury in capital cases. And we have been scrupulous in enforcing compliance with the waiver provisions in those cases in which waiver is permissible" ( People ex rel. Rohrlich v. Follette, supra, at 300, 282 N.Y.S.2d 729, 229 N.E.2d 419 [emphasis added]; cf., People v. Brown, 37 A.D.2d 980, 327 N.Y.S.2d 820; see also, People v. Matthews, 35 A.D.2d 1049, 316 N.Y.S.2d 936; A Rosenblatt & J. Rosenblatt, Six-Member Juries in Criminal Cases, Legal and Psychological Considerations, 47 St John's L Rev, 615, 620 [1973] ["Even where a waiver is intelligently and clearly tendered, it will be rejected, and a conviction reversed, if the waiver procedure has not been fastidiously adhered to"] ).

As this court noted recently--albeit in a civil case--"[t]he right to trial by jury is a fundamental one, and the courts indulge every reasonable presumption against waiver" ( Waldman v. Cohen, 125 A.D.2d 116, 121, 512 N.Y.S.2d 205; see also, Shapiro v. Marstone Distrs., 40 A.D.2d 878, 337 N.Y.S.2d 928). Moreover, in People v. Duchin, 12 N.Y.2d 351, 353, 239 N.Y.S.2d 670, 190 N.E.2d 17, the court clearly indicated that a defendant's waiver of his right to be tried without a jury must be "knowing" and "intelligent" when it stated that, "[a] defendant may not be forced to a trial before a jury if it sufficiently appears that his election to be tried without one was made knowingly and understandingly, based on an intelligent, informed judgment" 3 ( see also, People v. McQueen, 52 N.Y.2d 1025, 438 N.Y.S.2d 299, 420 N.E.2d 97; People v. Davis, 49 N.Y.2d 114, 424 N.Y.S.2d 372, 400 N.E.2d 313; People v. Green, 136 Misc.2d 245, 518 N.Y.S.2d 559; People v. Evans, 10 Misc.2d 409, 175 N.Y.S.2d 656). Finally, this court has held that the People bear the burden of establishing a proper waiver ( see, People v. Basora, 90 A.D.2d 851, 457 N.Y.S.2d 84, affd. 111 A.D.2d 248, 489 N.Y.S.2d 91; People v. Meyer, 56 A.D.2d 937, 393 N.Y.S.2d 54).

III

Application of the foregoing principles within the context of the facts presented herein reveals that the People have failed to discharge their burden of establishing a proper waiver. At bar, there is lacking in the record evidence tending to establish that the jury waiver form was executed in "open court", nor is there anything in the record--or the People's opposition...

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