People v. Duchin

Decision Date11 June 1962
Citation16 A.D.2d 483,229 N.Y.S.2d 46
PartiesThe PEOPLE of the State of New York, Respondent, v. Harold H. DUCHIN, Appellant.
CourtNew York Supreme Court — Appellate Division

Gilbert Roseman, Seaford, for appellant.

Manuel W. Levine, Dist. Atty., Mineola, for respondent, Henry P. DeVine, Asst. Dist. Atty., Mineola, of counsel.


HOPKINS, Justice.

The defendant was convicted, after a jury trial, of attempted rape in the first degree, assault in the second degree, carnal abuse of a child, and endangering the life, health and morals of a child. On the assult conviction, he was sentenced to serve an indeterminate term, the minimum of such term being one day and the maximum being life (Penal Law, § 1944-a). As to the conviction for the other crimes, sentence was suspended.

The defendant urges on this appeal that he was deprived of a trial by the court alone pursuant to the provisions of the State Constitution. 'A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by 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' (N. Y. State Const. art. I, § 2).

At the time the indictment was moved for trial the defendant tendered in open court a written waiver of a trial by jury. The court permitted the defendant to sign his name before it, and reserved decision on the application. The defendant asserted as a basis for his application that he could not receive a fair and impartial trial before a jury by reason of newspaper reports concerning his arrest, incarceration, and impending trial, describing him as a 'sex monster', and 'a molester of dozens of children.' On the following day the court denied the application, without assigning any ground for the denial.

Thereafter the defendant moved in this court for an order of prohibition restraining a jury trial (Civil Practice Act, § 1287). That application was denied, upon the ground that the adefendant's rights could be adequately protected by an appeal in the event of a conviction (Matter of Duchin v. Peterson, 12 A.D.2d 622, 208 N.Y.S.2d 458, leave to appeal denied, 9 N.Y.2d 609, 210 N.Y.S.2d 1025, 172 N.E.2d 293). We meet the merits of the defendant's contention, accordingly, on this appeal.

The constitutional provision is self-executing (People v. Carroll, 3 N.Y.2d 686, 688, 171 N.Y.S.2d 812, 813, 148 N.E.2d 875, 876). A defendant in a non-capital criminal case does not have an absolute and limitless right to waive a trial by jury. (People v. Diaz, 10 A.D.2d 80, 89, 198 N.Y.S.2d 27, 36, affd. 8 N.Y.2d 1061, 207 N.Y.S.2d 278, 170 N.E.2d 411.) 'We hold that, by the terms of Article I, Section 2, of the New York State Constitution, the trial court, in the exercise of its judicial discretion, is empowered to grant or deny an application for a jury waiver in any criminal case charging a felony other than a capital one.' (People v. Diaz, supra, 10 A.D.2d 80, 89, 198 N.Y.S.2d 27, 37).

Though the defendant does not have an absolute right to trial by the court alone, neither does the court have the absolute right to deny him a nonjury trial. Although the court is invested with discretion, it is a judicial discretion. It is a discretion to be exercised, in the words of Chief Justice Marshall, 'not to give effect to the will of the judge, but to that of the law' (Tripp v. Cook, 26 Wend. 143, 152). It is a discretion which 'is not the judge's sense of moral right; neither is it his sense of what is just. He is not clothed with a dispensing power or privileged to exercise his individual notions of abstract justice. * * * He is not atliberty in determining personal or property rights to act at his own discretion unrestrained by the legal and equitable rules governing those rights' (Matter of Bond's Guardianship, 251 App.Div. 651, 654, 297 N.Y.S. 493).

In People v. Diaz (supra), the defendant had been indicted with three others on charges of manslaughter in the first and second degree, and of conspiracy. He alone applied for a nonjury trial; his codefendants did not join in the application. The denial of the application by the trial court was affirmed on appeal as a proper exercise of judicial discretion for the waiver was considered as a disingenuous attempt to obtain a severance. The Appellate Division, First Department, noted that the defendant made no claim that he would be prejudiced by a joint trial, or that he could not receive a fair and impartial trial by a jury (People v. Diaz, supra, 10 A.D.2d 80, at 91, 198 N.Y.S.2d at 38). In the course of its opinion the court said that a single defendant 'is entitled, at his option, to a trial at the bar of a court alone, unless the circumstances clearly indicate that it would not serve the ends of justice,' and that '[A] judge may not deny the application, for example, because it places a greater responsibility upon him, or to avoid the performance of a disagreeable duty' (People v. Diaz, supra, 10 A.D.2d at 90, 198 N.Y.S.2d at 38). It further stated (People v. Diaz, supra, 10 A.D.2d 92, 198 N.Y.S.2d 39):

'The privilege accorded is intended as a shield for those eligible to use it, not as a sword to defeat the ends of justice. So, for example, it is quite appropriate to grant a waiver against the possible infection of a jury by public outrage and clamor in the midst of a waive of crime or other inflammatory stimuli, and thus afford a defendant a fair and impartial trial free from prejudice' (p. 92, 198 N.Y.S.2d p. 39).

We hold in the light of the principles of judicial discretion, the purpose and effect of the constitutional provision, and the ends of justice, that the refusal of the trial court to try the defendant without a jury constituted an abuse of discretion in this record, requiring a new trial. The constitutional provision conferred on the defendant the right to be tried by a jury, or without a jury, at his option, unless for some compelling ground arising out of the attainment of the ends of justice his option might not be honored. A contrary determination would sap the force of the Constitution and render it meaningless save at the uncontrolled will of the court.

We are left to speculation as to the reason for the denial, and speculation...

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13 cases
  • People v. Miller
    • United States
    • New York Supreme Court
    • 24 Septiembre 1990 the contrary, entertain a doubt that Defendant could rightfully 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 attainm......
  • United States v. Follette
    • United States
    • U.S. District Court — Southern District of New York
    • 18 Marzo 1966
    ...261 N.Y.S.2d 997 (2d Dep't 1965), and leave to appeal to the Court of Appeals was denied on November 16, 1965. 2 People v. Duchin, 16 A.D.2d 483, 229 N.Y.S.2d 46 (2d Dep't 1962), aff'd, 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E. 2d 17 (1963). 3 With respect to the attorney's affidavit, the p......
  • Telephone Communications, In re
    • United States
    • New York Supreme Court
    • 19 Octubre 1967
    ...deemed self-executing. (People v. Carroll, 3 N.Y.2d 686, 691--692, 171 N.Y.S.2d 812, 816--817, 148 N.E.2d 875, 876--877; People v. Duchin, 16 A.D.2d 483, 229 N.Y.S.2d 46, affd. 12 N.Y.2d 351, 239 N.Y.S.2d 670, 190 N.E.2d 17; People v. Diaz, 10 A.D.2d 80, 83, 198 N.Y.S.2d 27, 29, affd. 8 N.Y......
  • Gaulke v. State
    • United States
    • Minnesota Supreme Court
    • 26 Febrero 1971
    ...a jury.' (Italics supplied.)12 This basis for defendant's application was noted by the intermediate appellate court, People v. Duchin, 16 A.D.2d 483, 229 N.Y.S.2d 46. ...
  • Request a trial to view additional results
1 books & journal articles
  • 12.17 - IX. Waiver Of Jury Trial
    • United States
    • New York State Bar Association NY Criminal Practice Chapter 12 Jury Selection
    • Invalid date a multi-defendant indictment in People v. Duchin, 12 N.Y.2d 351, 239 N.Y.S.2d 670 (1963)).[1939] . Id.[1940] . People v. Duchin, 16 A.D.2d 483, 229 N.Y. S.2d 46, aff’d, 12 N.Y.2d 351, 239 N.Y.S.2d 670 (1963).[1941] . Id.[1942] . Duchin, 16 A.D.2d at 484–85.[1943] . Id. at 485. [1944] . I......

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