Relates to waivers of jury trials.
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.
STATE OF NEW YORK ________________________________________________________________________ 4745 2011-2012 Regular Sessions IN 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