Senate Bill S3294

                                BILL NUMBER:S3294

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 proce-
dure 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 defend-
ant'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,
              

390 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 eligi-
ble 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 citi-
zens. 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.