People v. Duchin

Decision Date04 April 1963
Citation12 N.Y.2d 351,239 N.Y.S.2d 670,190 N.E.2d 17
Parties, 190 N.E.2d 17 The PEOPLE of the State of New York, Appellant, v. Harold DUCHIN, Respondent.
CourtNew York Court of Appeals Court of Appeals

William Cahn, Dist. Atty. (Henry P. De Vine, Asst. Dist. Atty., of counsel), for appellant.

Gilbert Roseman, Seaford, for respondent.

FULD, Judge.

Our dissenting brethren take the position that the trial judge has an uncontrolled discretion to refuse to approve a defendant's application for a waiver of a trial by jury. We read the constitutional amendment (N.Y.Const. art. I, § 2), which provides for such a waiver, quite differently. 1 The provision is designed for the benefit of the defendant. When, choosing to be tried by a judge alone, he requests a waiver, he is entitled to it as a matter of right once it appears to the satisfacation of the judge of the court having jurisdiction that, first, the waiver is tendered in good faith and is not a stratagem to procure an otherwise impermissible procedural advantage such as, for instance, a separate trial on an indictment involving several defendants jointly charged with the commission of crime (People v. Diaz, 10 A.D.2d 80, 198 N.Y.S.2d 27, affd. 8 N.Y.2d 1061, 207 N.Y.S.2d 278, 170 N.E.2d 411) and, second, that the defendant is fully aware of the consequences of the choice he is making. The requirement that the judge give his 'approval' to the waiver was intended, in the words of Judge SEARS, the proponent of the proposal at the Constitutional Convention, solely 'to assure (the defendant) * * * full opportunity to understand what he is doing' (N.Y.State Constitutional Convention, 1938, Rev.Record, Vol. II, p. 1274, also pp. 1276-1286).

An accused who admits his guilt, and does so with full appreciation of his act, may not be compelled to stand trial against his will. And, if this be so, certainly, 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. Since in this case there is no doubt that the defendant was thoroughly aware of what he was doing, and no question exists as to his good faith in seeking a nonjury trial, the judge had no alternative but to approve the waiver requested and sanction a trial without a jury.

The order appealed from should be affirmed.

DESMOND, Chief Judge (dissenting).

When in 1938 there was voted into our State Constitution (art. I, § 2) a limited permission for jury trial waivers by defendants in noncapital criminal cases, the Convention and the People were careful not to give these defendants a full and free choice between jury and a nonjury trial. Instead there was carved out a narrow, cautious exception to the basic rule that: 'Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever.' The quoted language was left in section 2 of article I to make it clear that jury trial was still to be an 'inviolate' and inalienable right (Cancemi v. People, 18 N.Y. 128, 138). The only change was to accord a partial privilege of waiver to be exercised in one specified manner only: that is, 'by a written instrument signed by the defendant * * * in open court' with the 'approval' of the Judge. There is no suggestion of any intention to give to a defendant, already equipped with the right to a jury trial, another and opposite 'right' to be tried before a Judge alone. On the contrary, there is express provision not only that the waiver must be in writing and signed in open court but it must additionally have the 'approval' of the Judge. To the voters who 'approved' the new Constitution these words must have meant just what they said. 'Approval' of the waiver had the same meaning as 'approval' (N.Y.Const. art. XIX, §§ 2, 3) of constitutional amendments themselves. 'Approval' in all these instances means a final vote or choice one way or the other, not a reviewable decision. 'Approval' is not a step or stage in a judicial process but is a certificate of acceptability, a final expression of favorable view produced by independent judgment and subject to no...

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44 cases
  • State v. Dunne
    • United States
    • New Jersey Supreme Court
    • May 30, 1991
    ...be granted if the waiver is made knowingly and intelligently and for more than merely tactical reasons. E.g., State v. Duchin, 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E.2d 17 (1963). Other states give the trial judge broad discretion in determining whether to grant a defendant's motion to wa......
  • People v. Miller
    • United States
    • New York Supreme Court
    • September 24, 1990
    ...make such a waiver (citations omitted). Cf. People v. Duchin, 16 A.D.2d 483, 485, 229 N.Y.S.2d 46 (1962), aff'd. 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E.2d 17 (1963), where some "compelling ground arising out of the attainment of the ends of justice" requires that the request for waiver be......
  • Department of Housing Preservation and Development of City of New York v. Deka Realty Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • January 9, 1995
    ...for criminal prosecutions (see, People v. Cosmo, 205 N.Y. 91, 98 N.E. 408; Cancemi v. People, 18 N.Y. 128; People v. Duchin, 12 N.Y.2d 351, 353, 239 N.Y.S.2d 670, 190 N.E.2d 17). ORDERED that the order and judgment is modified by (1) deleting the provision thereof which vacated the civil pe......
  • People v. Christopher
    • United States
    • New York Supreme Court — Appellate Division
    • May 25, 1984
    ...waive a jury trial (N.Y. Const., art. I, § 2; People v. Davis, 49 N.Y.2d 114, 424 N.Y.S.2d 372, 400 N.E.2d 313; People v. Duchin, 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E.2d 17). Here, the court completely explained the requirements of a jury waiver, informed defendant of the differences be......
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