S4745-2011 Actions

• Jan 4, 2012: REFERRED TO CODES
• Apr 18, 2011: REFERRED TO CODES

S4745-2011 Memo

BILL NUMBER:S4745

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to waivers of jury
trials

PURPOSE:
To require the district attorney's consent for a defendant to waive a
jury trial.

SUMMARY OF PROVISIONS:
Section 1 amends subdivision 2 of section 320.10 of the criminal
procedure law to require that when a defendant wishes to waive his
right to a jury, the district attorney must also consent to the
waiver. Section 2 provides that this act shall take effect immediately.

JUSTIFICATION:
Although there is a fundamental right to a jury trial, prior to 1937
the New York Constitution was construed as barring defendant's waiver
of a jury trial of a felony. People v. Cosmos, 205 N.Y. 91 (1912). By
enactment of Article 320 of the criminal procedure law defendants
were granted the right to waive, except where the crime charged may
be punished by death. The right is not absolute and must currently
have the approval of a judge or justice of the court having
jurisdiction to try the case.

Under federal practice the consent of the government as well as the
approval of the court is required. FRCRP 25
el;Singer v. United
States, 380 U.S.24 (19.65;).

The New York Court of Appeals held in People v. Kern, 75 N.Y.2d 658,
cert. denied 498 U.S.
824, that jury service was a constitutionally protected civil right,
secured to all citizens by Article 1.5 1 of the State Constitution.
Furthermore, the legislature, through enactment of Section 500 of
the judiciary laws 500 declared: "It is the policy of this state that
all litigants in the courts of this state entitled to trial by jury
shall have the right to grand and petit juries selected at random
from a fair cross-section of the community in the county or other
governmental subdivision wherein the court convenes; and that all
eligible citizens shall have the opportunity to serve on grand
and petit juries in the courts of this state, and shall have an
obligation to serve when summoned for that purpose, unless excused.

By denying the citizens of this state a say in whether a criminal
case is heard by a jury infringes upon the public's right to serve
on the jury and to have criminal matters determined by a jury of
eligible citizens.  This legislation provides the People in the
State of New York that say through the district attorney, by giving
the district attorney, by giving the district attorney the power
to disapprove the defendant's waiver of a jury trial.

LEGISLATIVE HISTORY:
2009: A.2054


FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately upon becoming law.

S4745-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         4745
 2011-2012 Regular Sessions
 I N  SENATE
 April 18, 2011
 
 Introduced  by  Sen.  O'MARA -- read twice and ordered printed, and when
 printed to be committed to the Committee on Codes
 

AN ACT to amend the criminal procedure law, in relation  to  waivers  of
 jury trials
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Subdivision 2 of section 320.10 of the  criminal  procedure
 law is amended to read as follows:

 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] AND THE CONSENT OF THE  DISTRICT  ATTORNEY.
 IF  THE DISTRICT ATTORNEY CONSENTS TO THE WAIVER, 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  proce
 dural  advantage  or that the defendant is not fully aware of the conse
 quences of the choice he is making.  If the court disapproves the  waiv
 er, it must state upon the record its reasons for such disapproval.
 

S 2. This act shall take effect immediately.
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD09717-01-1

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