People v Chillino (John)

[*1] People v Chillino (John) 2005 NY Slip Op 52129(U) [10 Misc 3d 136(A)] Decided on December 19, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
2005-419 OR CR

The People of the State of New York, Respondent,

against

John Chillino, Appellant.

Appeal from a judgment of the Justice Court of the Town of Cornwall, Orange County (Joseph L. Thomson, J.), rendered March 3, 2005. The judgment convicted defendant, after a nonjury trial, of operating a motor vehicle while impaired.

Judgment of conviction unanimously reversed upon the law and matter remanded to the court below for all proceedings upon the original driving while intoxicated charge.

Defendant was tried on a misdemeanor charge of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and found guilty, after a bench trial, of the lesser included offense of driving while impaired (Vehicle and Traffic Law § 1192 [1]). [*2]

Following the respective attorneys' summations at the end of the trial, the court reserved decision saying that it would "get something out to you in the next two weeks." Defense counsel replied, "Very good . . ." and the prosecutor thanked the court. The court subsequently sent a written decision finding defendant guilty of the lesser included offense and imposing a fine.

The contentions raised by defendant herein are conceded by the People to have merit. The right to a jury trial is considered fundamental (People ex rel. Rohrlich v Follette, 20 NY2d 297, 301 [1967]). Pursuant to CPL 320.10 (2), a waiver of a jury trial must be in writing and must be signed by the defendant in person in open court (see NY Const, art I, § 2; People v Finkle, 262 AD2d 971 [1999]; People v Davidson, 136 AD2d 66, 70 [1988]; cf. People v Badden, 13 AD3d 463 [2004]; People v Brunson, 307 AD2d 323 [2003]). There has been no valid waiver of a jury trial in the case at bar.

The rendering of the verdict on the then-pending misdemeanor charge by a written decision without a knowing and voluntary waiver of defendant's right to be present in court violated his right to be present at a material stage in the proceedings [*3]
(see People v Paddock, NYLJ, July 12, 2000 [App Term, 9th & 10th Jud Dists]). Moreover, defendant was deprived of his right to be present at the imposition of sentence (CPL 380.40).

In view of the foregoing, a new trial is required on the original charge of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; see People v Watkins, 233 AD2d 904 [1996]).
Decision Date: December 19, 2005