failure to obtain defendant’s personal waiver of right to jury trial by “written instrument” is per se reversible error
How later courts described this case
- failure to obtain defendant’s personal waiver of right to jury trial by “written instrument” is per se reversible error
Written by the judges who cited it.
The opinion
Appeal by defendant from a judgment of the County Court, Dutchess County, rendered June 10, 1970, convicting him of rape in the third degree, after a nonjury trial, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant contends that his waiver of trial by jury was ineffective because it was oral. Section 2 of article I of the Constitution of the State of Hew York provides: “ A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” The constitutional requirement of a written waiver was not complied with; therefore, no waiver occurred (People v. Matthews, 35 A D 2d 1049). Munder, Acting P. J., Latham, Shapiro, Christ and Benjamin, JJ., concur.