People v Wilson

[*1] People v Wilson 2006 NY Slip Op 52403(U) [14 Misc 3d 1204(A)] Decided on May 4, 2006 County Court, Essex County Meyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 26, 2006; it will not be published in the printed Official Reports.

Decided on May 4, 2006
County Court, Essex County

The People of the State of New York,

against

Joe Pete Wilson a/k/a Joseph Peter Wilson, Appellant-, Defendant.



4515



(Appearances: Julie A. Garcia, Esq., Essex County District Attorney (Michael P. Langey, Esq., of counsel), Elizabethtown, New York; Livingston L. Hatch, Esq., Essex County Public Defender, Elizabethtown, New York)

Richard B. Meyer, J.

Appeal from a Judgment of the Justice Court, Town of Keene, Essex County (Wells, J.) convicting the Defendant of violating Agriculture and Markets Law §353, an undesignated misdemeanor [FN1], and imposing a sentence of restitution and forfeiture of the horse.

This criminal action was commenced by a criminal summons and sworn information both dated March 30, 2004. Defendant was arraigned and pled not guilty. After plea bargaining negotiations proved unsuccessful, the People requested that the matter be scheduled for trial. The parties and the Trial Court exchanged correspondence as to whether there would be a jury or non-jury trial, but no writing is contained in the record memorializing the parties' final agreement.

A non-jury trial was conducted on July 18, 2005 with a certified shorthand reporter stenographically recording the proceedings. No written waiver signed by the Defendant in open [*2]court and in the presence of the Trial Court was made, and the People concede that no such written waiver was ever so executed or approved by the Trial Court. Following the close of evidence, the Trial Court reserved decision to await receipt of the transcript. On August 22, 2005 the Trial Court rendered its verdict from the bench finding the Defendant guilty for failing to provide proper and adequate food for Defendant's horse, Britches. The matter was adjourned for sentencing.

By motion dated August 22, 2005 Defendant moved to set aside the verdict as defective and illegal on the grounds that there had been a failure to comply with CPL §320.10(2) requiring a written waiver of the right to a trial by jury. The People opposed the motion, and it was denied by the Trial Court. Defendant then filed a motion to set aside the verdict pursuant to CPL §330.30 on September 23, 2005 which was again opposed by the People and denied. Defendant was sentenced on October 17, 2005, to restitution of $3,190.00, representing the cost to care for the horse, and his ownership of the horse was forfeited. Defendant filed a Notice of Appeal on October 22, 2005. By order dated December 30, 2005, this Court [FN2] stayed execution of the part of the sentence directing restitution pending appeal.

It is well settled that the New York and United States Constitutions afford a Defendant, charged with an offense carrying a maximum term of imprisonment greater than six months, the right to a trial by jury (US Constitution, Amendment 6; NY Constitution, Article 1, §6; see People -v- Foy, 88 NY2d 742, 650 NYS2d 79, 673 NE2d 589). Article 1, §2 of the New York Constitution contains "[t]he basic and necessary procedural requirements" (People v. Carroll, 3 NY2d 686, 692, 171 NYS2d 812, 818, 148 NE2d 875, 879) for a waiver of a jury trial to be valid the waiver must be in writing, signed by the defendant in open court before the trial judge, and approved by the trial judge. "Such constitutional requirements are not lightly disregarded. To the contrary, express provisions of our Constitution should be vigilantly enforced and the rights they protect zealously guarded (see, e.g., People v. Boston, 75 NY2d 585, 555 NYS2d 27, 554 NE2d 64 [constitutional provision for waiving right to indictment by Grand Jury]; see also, People ex rel. Rohrlich v. Follette, 20 NY2d 297, 300, 282 NYS2d 729, 229 NE2d 419 [noting that Court is "scrupulous in enforcing compliance with the waiver provisions" of art I, § 2])." (People v. Page, 88 NY2d 1, 9, 643 NYS2d 1, 6, 665 NE2d 1041, 1046)

Although the State Constitution's provisions guaranteeing the right to a trial by jury and waiver of such right only upon a written waiver signed by a defendant in open court in the presence of the court are self-executing and not dependent upon implementing legislation (see People v. Carroll, 3 NY2d 686, 171 NYS2d 812, 148 NE2d 875), the Legislature codified these rights in statute. CPL §340.40(2) specifically provides for a defendant charged by an information with a misdemeanor in a local criminal court to be afforded a jury trial, unless the defendant waives "a jury trial in the manner prescribed in subdivision two of section 320.10, and consent[s] to a non-jury trial." In order for a waiver of jury trial to be valid, CPL §320.10(2) sets forth the following mandatory requirements:"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. [*3]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."

Convictions after non-jury trials have been reversed in cases where a defendant executed a written waiver of his right to jury trial but not in open court (see People v. Davidson, 136 AD2d 66, 525 NYS2d 855, leave to appeal denied 69 NY2d 826, 513 NYS2d 1033, 506 NE2d 544), and where the waiver was orally stated in open court on the record but not in writing (see People v. Meyer, 56 AD2d 937, 393 NYS2d 54; People v. Brown, 37 AD2d 980, 327 NYS2d 820; People v. Matthews, 35 AD2d 1049, 316 NYS2d 936).

Here, Defendant was charged with violating Agriculture and Markets Law §353, then an unclassified misdemeanor, for which a penalty of imprisonment of not more than one year could be imposed. Thus, Defendant unquestionably possessed the right to a trial by jury (NY Constitution, Article 1, §2; CPL §340.40 [2]; People v. Foy, supra .). While it appears that the Defendant, through trial counsel, acquiesced if not consented to a non-jury trial, it is undisputed that the clear constitutional and statutory requirements of a written waiver signed in open court before the trial judge were not met. The responsibility for establishing that Defendant properly waived his right to a jury trial rested, in this case, with the People (see People v. Davidson, supra .). "As the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver. Aetna Insurance Co. v. Kennedy, 301 US 389, 393, 57 SCt 809, 811, 81 LEd 1177 (1937). In both criminal and civil cases, where waiver of the right is asserted, the burden rests with the party who seeks to enforce it. That party must demonstrate that there was a clear, knowing and intelligent waiver. 407-88 Associates v. Sawyer, 83 Misc 2d 300, 301, 371 NYS2d 748 (Civ.Ct.N.Y.Co.1975)." (Holrod Associates v. Tomanovitz, 117 Misc 2d 371, 372, 458 NYS2d 156, 158)

There being no written waiver of jury trial signed by the Defendant in open court in the presence of the Trial Judge, the Defendant did not effectively waive a jury trial; and the judgment must be reversed, the sentence vacated, and a new trial granted (see People v. Finkle, 262 AD2d 971, 692 NYS2d 265, leave to appeal granted 93 NY2d 1007, 695 NYS2d 753, 717 NE2d 1090, appeal dismissed 94 NY2d 942, 709 NYS2d 498, 498, 731 NE2d 154 [reversing conviction for vehicular manslaughter]; People v. Zawistowski, 168 AD2d 950, 564 NYS2d 902 [reversing conviction for second-degree murder]; People v. Matthews, supra , [reversing conviction for youthful offender based on charges of robbery in the first degree and petit larceny]; People v. Quinn, 158 Misc 2d 1015, 607 NYS2d 534 [reversing conviction for driving while ability impaired by drugs]). Defendant's remaining challenges to the judgment and sentence need not be reached.

ORDERED. that the judgment convicting the Defendant of violating Agriculture and Markets Law §353 is hereby reversed on the law, the sentence imposed is vacated in its entirety, and the matter is remanded for a new trial consistent with this decision and order.

Decision and Order signed this 4th day of May, 2006, at Elizabethtown, New York.

ENTER [*4]

_______________________________________

Richard B. Meyer

J.C.C. Footnotes

Footnote 1:Agriculture and Markets Law §353 was amended effective November 1, 2005 to, among other things, provide for a violation to be a class A misdemeanor (see Chapter 523, Laws of 2005).

Footnote 2: Former Essex County Judge Andrew Halloran.