People v Capellan

[*1] People v Capellan 2012 NY Slip Op 52247(U) Decided on December 12, 2012 City Court Of Rye Latwin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 12, 2012
City Court of Rye

The People of the State of New York,

against

Catherine Capellan, Defendant.



12-241



The People by Janet DiFiore, District Attorney (Valerie A. Livingston, Assistant District Attorney)

Defendant by Stephen Corry Effler, Esq. Rye Brook, NY

Joseph L. Latwin, J.

Defendant stands charged with Endangering the Welfare of a Minor, Penal Law § 260.10, Resisting Arrest, Penal Law § 205.30, and Disorderly Conduct, Penal Law § 240.20. The charges appear to arise from an incident at Playland where defendant is alleged to have become unruly, shouted obscenities and struggled in attempting to resist her arrest. During this incident, Heriberto Medina was present and at some point sought to intervene. Mr. Medina was also arrested and charged with Endangering the Welfare of a Minor, Penal Law § 260.10 and Disorderly Conduct, Penal Law § 240.20, like the defendant, but was also charged with Obstructing Governmental Administration, Penal Law § 195.05 and False Personation, Penal Law § 190.23.

Defendant was assigned counsel and arraigned. At the next adjourned date, the People filed supporting depositions, declared readiness, and offered to accept a plea to disorderly conduct in full satisfaction. In the meanwhile, Mr. Medina[FN1] requested a jury trial on October 9 and a jury trial has been scheduled for January 30, 2013. The defendant however, executed a waiver of her right to a jury trial on [*2]September 18, 2012 and her trial date was set for November 14. When defendant executed the waiver she was represented by counsel and stated she was fully advised of her rights concerning the right to a jury trial. On October 23, the defendant sought to withdraw her waiver of a jury trial and postpone her trial. She filed this motion seeking to vacate the jury trial waiver and to consolidate the trial with the trial of Mr. Medina.

The right to trial by jury in a criminal proceeding has long been established as the normal and preferable mode of disposing of issues of fact. A part of the credo of the American legal system, it is a fundamental imperative, sacrosanct in nature and guaranteed by both the Federal and State constitutions (see U.S. Const., Art. III, Sec. 2; U.S. Const., Sixth Amend.; NY Const., Art. I, Sec. 2). Neither document, however, precludes an express waiver thereof. Generally, the exercise of the right to outweigh any burden placed on the State as a result thereof. People v. Miller, 149 Misc 2d 554, 566 NYS2d 429 [Sup Court Bronx County 1990].

A waiver of the constitutional right to a jury trial must be in writing, executed in open court. NY Constit art 1, § 2; CPL § 320.10(2). The defendant waiving jury trial must be aware of the consequences of the waiver. People v. Livingston, 184 AD2d 529, 584 NYS2d 175 [2nd Dep't 1992]; see also, People v. Butler, 17 AD3d 379, 792 NYS2d 581 [2nd Depot 2005]. A waiver was effective despite no questioning of the defendant as to his understanding; questioning defense counsel in defendant's presence sufficed. No particular catechism is required. People v. Smith, 6 NY3d 827, 817 NYS2d 575 [2006].

A defendant who has waived a jury trial may seek to withdraw the waiver before trial starts. The granting or denial of such a request is within the court's discretion. People v. McCain, 52 NY2d 1025, 438 NYS2d 299 [1981]. In McCain, the Court of Appeals found the refusal to permit withdrawal of the waiver of the right to a jury was not an abuse of discretion when the defendant, was advised by counsel, and after thorough and appropriate inquiry by the court to ascertain that his waiver of his right to a jury trial was knowingly and voluntarily made, elected to proceed without a jury and executed a waiver of that right but changed his mind and without giving any other reason requested that the waiver be vacated the day the trial began. [*3]

In ruling on a request for withdrawal of the waiver, the court should consider the following factors:

• the timeliness of the application; • evidence of bad faith; • the effect of the request on the interests of justice; & • the nature or extent of the prosecution's objection.

See, People v. Miller, 149 Misc 2d 554, 566 NYS2d 429 [Sup Court Bronx County 1990]. Applying those standards, the Court finds that the application to withdraw the waiver occurred slightly more than one month after the waiver was executed and almost a month before the trial was scheduled to begin. There is no evidence or allegation of bad faith in making the request to withdraw. The effect of the request would at worst delay the trial date approximately 6 weeks, with no apparent prejudice to either party. The People's objection to the request is based upon the one month's delay in making the request to withdraw and defendant's change of heart without specifying a reasoned basis for the request to withdraw her otherwise validly executed waiver of a right to a jury trial.

Given the fundamental nature of the right to a jury trial and that lack of any particular prejudice to the People in this particular case, the Court is inclined to permit the withdrawal of the waiver of the right to a trial by jury.

Consolidation

Criminal Procedure Law § 100.45(1) permits consolidation of cases "[where appropriate, the provisions of sections 200.20 and 200.40, governing . . . consolidation of indictments for trial purposes, apply to information, to prosecutor's information and to misdemeanor complaints." C.L. § 200.40(1)(c) permits joinder when all the offenses charged are based upon the same criminal transaction, i.e., (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture. C.L. § 40.10(2). We assume for the purposes of this motion, due to the closeness of the time, location and charges that the joinder might be permitted. However C.L. § 200.40(2) allows the motion for consolidation to be made only on the application of the People. Here, the People have not moved for consolidation and that alone is sufficient to deny the motion to consolidate. [*4]

There is nothing in the record that indicates the defendant cannot have a full and fair trial separate from Mr. Medina. In fact, the opposite may be the case. Trying defendant and Mr. Medina together may be prejudicial to one or both of them.The defendant and Mr. Medina were charged with different misdemeanors arising out of their allegedly different conduct occurring at the same time and place. Such differing charges could result in jury confusion. Additionally, although served with this motion, Mr. Medina's counsel has not joined in the request. Defendant and Mr. Medina could both be available to testify in the other's trial should there be no consolidation.

The only basis for the request for consolidation is that "upon information and belief, it would be in the interests of judicial economy." While the Court is all in favor of judicial economy, the movant has failed to set forth any facts as to what, if any economies would be achieved by a consolidated trial. The Court cannot read movant's mind, nor will it engage in conjecture as to what those economies might be.

Accordingly, the motion to withdraw the waiver of the right to a jury trial is granted, and the motion requesting consolidation with the trial of Heriberto Medina is denied.

IT IS ORDERED that the defendant's motion to withdraw the waiver of the right to a jury trial is granted, and it is further

December 12, 2012_________________________

JOSEPH L. LATWIN

Rye City Court Judge

Papers -

Affidavit of Catherine Capellan sworn to October 23, 2012; -

Affirmation of Stephen Corry Effler dated October 22, 2012; & -

Affirmation of Valerie A. Livingston dated November 29, 2012 Footnotes

Footnote 1: Mr. Medina was also offered a Disorderly Conduct plea in satisfaction of the charges. It is not improbable that Mr. Medina will accept this offered non-criminal disposition obviating the need for his jury trial.