People v. McCarthy
| Decision Date | 15 December 1983 |
| Citation | 469 N.Y.S.2d 569,121 Misc.2d 1086 |
| Parties | The PEOPLE of the State of New York v. Glenn McCARTHY and Steven Lollo, Defendants. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty., N.Y. County (Ruby Mages, Asst. Dist. Atty., of counsel), for the People.
Irving Anolik, New York City, for defendant McCarthy.
J. Kenneth O'Connor, New York City, for defendant Lollo.
Can a defendant waive a jury in a criminal proceeding pursuant to an indictment after four jurors have been impaneled and sworn?
Defendants were indicted for assault in the second degree (two counts). The complainant and defendants were rival officials in two separate Teamsters' International local unions. At a meeting to resolve differences in determining which one of the two locals should represent employees in a certain plant, a physical fight ensued where the alleged assaults took place.
During the initial voir dire by the prosecutrix, the court permitted the labor background of the predicate to the assault to be aired to the jury. The purpose was to weed out those prospective jurors who were 1) either so partial or prejudiced in labor matters and/or 2) so knowledgeable in National Labor Board proceedings including decertification, unfair labor practices and jurisdictional proceedings as to make it difficult for a prospective juror to be fair and impartial.
After the first prospective jurors' panel was voir-dired by the court and both sides, four jurors were impaneled and sworn; the case was adjourned to the following day for continued jury selection. Upon resumption the following morning defense counsel for both defendants moved to waive a jury and moved for a non-jury trial. The bases for the request by the defense were the following:
1. From the voir dire of the prosecutrix the day before it was apparent that details of national labor organizational practices would have to be explored in testimony before the jury and might confuse a jury but not a judge; hence a non-jury trial would be fair to the defendants whereas a jury trial could or would not be.
2. A jury trial is a constitutional right for a defendant in a criminal proceeding by indictment (Art. VI, § 18 of the New York State Constitution), however such right can be waived by a defendant in any criminal case pursuant to said Constitution (Art. I § 2) except in murder in the first degree indictments.
3. The trial had not commenced.
The prosecutrix argued that:
1. The trial had commenced and defendants had waived their right to waive a jury trial.
2. Sworn jurors could be excused only by consent of both sides.
3. The introduction of technical labor practices was minimal in that the indictment charged assault and not any criminal violations of the labor laws.
4. This was a ploy or "strategem" used by the defense as set forth in § 320.10, subd. 2 CPL.
To begin with the two applicable statutes are sections 260.10 CPL and 320.10.
§ 260.10 CPL states:
Except as otherwise provided in § 320.10 every trial of an indictment must be a jury trial.
§ 320.10 CPL states:
1. Except where the indictment charges the crime of murder in the first degree, the defendant, subject to the provisions of subdivision two, may at any time before trial waive a jury trial and consent to a trial without a jury in the superior court in which the indictment is pending.
2. Such 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. 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. If the court disapproves the waiver, it must state upon the record its reasons for such disapproval.
As to item # 1 of the prosecution's contention: the New York State Constitution states in effect that crimes prosecuted by indictment shall be tried by a jury composed of twelve persons (Art. VI, § 18[a] ). Section 1.20, subd. 11 of the CPL states that "a jury trial commences with the selection of the jury ...". A trial cannot "commence with the selection of" four jurors; it can only "commence with the selection of" twelve jurors.
This court holds that for the purpose of a defendant's right to waive a jury trial no jury trial commences until the twelfth (12th) juror has been impaneled and sworn.
The issue of "selection" of a jury has come before the courts in criminal prosecutions by indictment in two other areas (other than waiver under § 320.10):
1. double jeopardy (whether jeopardy has attached)
2. Rosario material submission to defense.
The rationale...
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