Opinion
July 27, 1970
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 22, 1969, adjudging him a youthful offender after a nonjury trial. Judgment reversed, on the law, and case remitted to the Criminal Term for a new trial before a jury. The findings of fact are affirmed. This court has recently held in People v. Michael A.C. ( 32 A.D.2d 554, affd. 27 N.Y.2d 79, and People v. David P. [ Anonymous] ( 35 A.D.2d 584) that subdivision 3 of section 913-g, and section 913-h, of the Code of Criminal Procedure, insofar as they require a defendant to consent to a summary trial without a jury to render him eligible for youthful offender treatment are unconstitutional (cf. Duncan v. Louisiana, 391 U.S. 145; Matter of Gault, 387 U.S. 1, 12.) Hopkins, Acting P.J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.