People v. Diaz

Decision Date15 March 1960
Citation10 A.D.2d 80,198 N.Y.S.2d 27
PartiesPEOPLE of the State of New York, Respondent, v. Norberto DIAZ, Defendant-Appellant, Francisco Padin, Pedro Rodriquez, Jose Bellido, Defendants.
CourtNew York Supreme Court — Appellate Division

Oscar Gonzalez-Suarez, New York City, Attorney (Morris M. Goldknopf, New York City, Frank A. Ortiz, Woodside, and Efrain G. Sanchez, New York City, with him on the brief), for defendant-appellant.

Irving Anolik, Asst. Dist. Atty., New York City, of counsel (Daniel V. Sullivan, Dist. Atty., County of Bronx, New York City, atty.) for respondent.

Before BOTEIN, P. J., and RABIN, M. M. FRANK, VALENTE and BASTOW, JJ.

M. M. FRANK, Justice.

On this appeal the prime specification of error urged as requiring a reversal of the judgment of conviction is that the defendant's constitutional right to waive a trial by jury and to be tried by the court alone was violated.

The facts upon which the constitutional problem is predicated are undisputed. The question we must determine is whether the Constitution grants an absolute right to waive a jury trial to every defendant in a criminal case charging a felony, save a capital one. If there is a mandatory direction, we must reverse. On the other hand, if the provision is merely permissive and confers even the slightest modicum of discretion on the trial judge, then the judgment should be affirmed, if there is no reversible error otherwise.

The problem presented is one of first impression in an appellate court in this state, although the precise issue has been considered at the trial level (see People v. Masucci, 21 Misc.2d 215, 198 N.Y.S.2d 110) and in an Article 78 proceeding (see Scott v. McCaffrey, 12 Misc.2d 671, 172 N.Y.S.2d 954; joint application for prohibition and mandamus).

The defendant, Norberto Diaz, appeals from a judgment of conviction of the crime of manslaughter, second degree, on two separate counts predicated on the deaths of two individuals, Venancio Velasquez and Jorge Valladaris, and on a count of conspiracy as well. On each manslaughter count he was sentenced to imprisonment in state's prison for a term of not less than 7 1/2 and not more than 15 years, to run concurrently. No sentence was imposed on the conviction for conspiracy.

Diaz and three others were indicted upon charges of manslaughter, first degree (two counts), manslaughter, second degree (two counts), and conspiracy. The co-defendant Bellido was acquitted; Francisco Padin and Pedro Rodriguez were convicted and sentenced. Their appeals were not perfected and were subsequently dismissed, so that here we are concerned only with the defendant Diaz.

Briefly, the facts as charged and as developed on the trial established that, with full knowledge of its deadly nature, Padin stole approximately 30 gallons of wood alcohol from the premises of his employer, a chemical firm in New Jersey, which he sold to the defendant Rodriguez. The theft occurred at the behest and suggestion of Rodriguez, who told Padin that the alcohol was to be distributed to parties in New York for the purpose of human consumption. Rodriguez, in turn, sold some of the wood alcohol to Diaz, the owner of a grocery, who tested a sample by igniting a small quantity of the fluid. With this test as his sole criterion, he thereupon declared it to be 'good' and took delivery. Diaz mixed the poisonous fluid with fruit juices and cola extracts, bottled the concoctions, called 'King Kong' or 'Sneaky Pete,' and sold them to customers including Valladores and Velasquez, both of whom died from the effects of wood alcohol poisoning.

The proof offered and received against Diaz, in addition to other evidence, included incriminating admissions he had made to some police officers and a stenographically recorded statement taken by an assistant district attorney. Diaz did not take the stand to refute or explain the admissions and statements, or to testify in his defense in any other respect. In sum, the verdict was fully justified by the evidence.

At the opening of the trial, Diaz moved for a non-jury trial, in the form and manner required by the New York State Constitution (Art. 1, Sec. 2), through his counsel who tendered a written waiver and stated that Diaz 'is prepared to sign a waiver consenting to a trial by this Court without a jury.' There can be no question that the application was knowledgeably made, with full consciousness of all possible consequences, through experienced counsel of the defendant's own choosing. The other defendants did not join in the application or offer similar waivers. In denying the motion, the learned County Judge ruled that the constitutional provision permitted the granting or the denial of the motion as a matter of judicial discretion. After taking an appropriate exception, counsel then moved 'to sever * * * and have the defendant, Norberto Diaz, tried alone before this Court without a jury.'

Insofar as a severance is concerned, the disposition of such an application clearly rests within the sound discretion of the court (Code of Criminal Procedure, § 391; People v. Fisher, 249 N.Y. 419, 424, 164 N.E. 336, 338). Under the circumstances, the trial court's determination was an appropriate exercise of judicial discretion and will not be disturbed.

The applicable section of the New York State Constitution (Article 1, Sec. 2) 1 resulted from an amendment adopted at the 1938 Constitutional Convention and approved by the people at the general election on November 8, 1938. No legislative implementation has been enacted since that time, probably because the Court of Appeals decided that the provision is self-executing (People v. Carroll, 3 N.Y.2d 686, 171 N.Y.S.2d 812). We shall later discuss the substantially identical provision of the Federal Rules of Criminal Procedure. 2

Before the turn of the century the federal courts and those in most of the states required that the trial of a felony be held before a common-law jury of twelve and forbade the waiver of such a jury. 3 Thereafter, the national government as well as many states permitted waiver of trial by jury in a criminal case. In some states the right so accorded a defendant is absolute and unqualified. In others, the consent of the prosecutor, the approval of the court, or both are required. Whether treated as a privilege or a right, in some jurisdictions it was accomplished by means of a constitutional provision or by statute, in some by judicial decision, and in others, as in the federal system, by rules of procedure. See Appendix at the foot of this opinion.

In some states, as well as under the Federal Rules of Procedure, the consent of the prosecutor to the application for a jury waiver is a prerequisite. With that requirement we have no concern, for it is not mandated in this state. With differences in phraseology in the various enactments disregarded for the moment, there is no doubt that there are divergent judicial opinions as to whether an application for a jury waiver must be granted as an absolute and unqualified right accorded a defendant, or whether it is subject to denial in the exercise of judicial discretion. 4 In this state a defendant charged with a felony was not permitted to waive a trial by jury before 1937 and it is unquestioned that the inflexible rule was crystallized by the Court of Appeals a century ago (Cancemi v. People, 18 N.Y. 128, 135-138). In that case, in open court and under the guidance and advice of counsel, the defendant, on trial charged with murder, consented to the discharge of a juror and the continuation of the trial by eleven jurors. On appeal, following his conviction, the main issue raised the impropriety of the proceedings. In reversing the judgment, the Court of Appeals held, in effect, that, in the absence of a constitutional provision, even the legislature could not dispense with a common-law jury.

The court said (at page 138): 'If a deficiency of one juror might be waived, there appears to be no good reason why a deficiency of eleven might not be; and it is difficult to say why, upon the same principle, the entire panel might not be dispensed with, and trial committed to the court alone.'

It is worth noting that in People v. Cosmo, 205 N.Y. 91, 98 N.E. 408, 39 L.R.A.,N.S., 967, decided 45 years later, the Court of Appeals was careful to distinguish Cancemi, undoubtedly to avoid the inference that it was being overruled.

In 1933, probably to overcome the rigidity of the Cancemi rule, the Code of Criminal Procedure (§ 358-a) was amended to permit the selection of alternate jurors, in order to insure a common-law jury of twelve and thus avoid a mistrial if a juror became incapacitated.

There can be no doubt that the constitutional amendment under consideration here was deemed essential. 5 While there is no need to discuss the reasoning upon which the Court of Appeals reached its conclusion in Cancemi and established the rule prohibiting the waiver of even one juror, it is a fair inference from cases decided in other jurisdictions that the holding in Cancemi had a profound effect upon legal thinking and caused some other states which favored jury waivers to conclude that the change, to be effective, required constitutional or statutory provision therefor. Indeed, in Patton v. United States, 281 U.S. 276, 302, 50 S.Ct. 253, 74 L.Ed. 854, wherein the Supreme Court sustained a conviction following a verdict by eleven jurors after the twelfth had been excused by consent for illness, the court, in discarding the Cancemi rule in respect to federal cases, indicated that Cancemi influenced many other jurisdictions to adopt similar views.

In Scott v. McCaffrey, 12 Misc.2d 671, 172 N.Y.S.2d 954, 961, supra, discussed in 59 Col.L.R. 815 it was held that the constitutional provision under consideration conferred an inviolate right to a waiver of jury by a defendant in a criminal case, subject only to his awareness of the consequences of the step...

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