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People v. Chillino

Appellate Term of the Supreme Court of New York, Second Department
Dec 19, 2005
2005 N.Y. Slip Op. 52129 (N.Y. App. Term 2005)

Opinion

2005-419 OR CR.

Decided December 19, 2005.

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.

PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.


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

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). 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; People v. Davidson, 136 AD2d 66, 70; cf. People v. Badden, 13 AD3d 463; People v. Brunson, 307 AD2d 323). 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 ( 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; see People v. Watkins, 233 AD2d 904).


Summaries of

People v. Chillino

Appellate Term of the Supreme Court of New York, Second Department
Dec 19, 2005
2005 N.Y. Slip Op. 52129 (N.Y. App. Term 2005)
Case details for

People v. Chillino

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN CHILLINO…

Court:Appellate Term of the Supreme Court of New York, Second Department

Date published: Dec 19, 2005

Citations

2005 N.Y. Slip Op. 52129 (N.Y. App. Term 2005)
814 N.Y.S.2d 563