Opinion
July 13, 1970
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 6, 1968, convicting defendant of criminal possession of a dangerous drug in the fourth degree, upon his plea of guilty, and certifying him to the custody of the Narcotic Addiction Control Commission. Judgment affirmed. Prior to his in-court admission of addiction in November, 1968, defendant was not given an allocution with respect to his right to a jury trial on that question. At that time, although there was a requirement that noncriminal addicts receive such an allocution (L. 1968, ch. 772, eff. June 16, 1968), there was no corresponding requirement as to criminal addicts. While it may well be, as defendant contends, that the guarantee of equal protection of the laws requires that noncriminal and criminal addicts receive similar allocutions (cf. People v. Fuller, 24 N.Y.2d 292), we need not decide this point. In People v. Reyes ( 26 N.Y.2d 97, 100), the Court of Appeals made clear that prior to the amendment of section 208 of the Mental Hygiene Law (L. 1969, ch. 809, eff. May 22, 1969) a criminal addict had the right to a jury trial on the question of his addiction "only * * * when a hearing was requested and had." The court stated (p. 100): "Where * * * the defendant after being informed that he has the right to a hearing freely admits his addiction with the aid of counsel, he is in effect stating that no judicial inquiry is necessary and, therefore, it is irrelevant whether that inquiry would have been made with or without a jury." Here, as in Reyes, defendant, after being informed that he had the right to a hearing, freely admitted his addiction, with the aid of counsel. In these circumstances, defendant was in effect stating that no judicial inquiry was necessary and, therefore, it is irrelevant whether or not he was advised of his right to a jury trial. Christ, P.J., Rabin, Munder and Martuscello, JJ., concur; Hopkins, J., dissents and votes to reverse the judgment, with the following memorandum:
In my opinion, defendant was entitled to be informed that he had a right to a jury trial. Since noncriminal addicts were expressly granted the right so to be informed (L. 1968, ch. 772), the constitutional privilege of equal protection of the laws clothed defendant with the same right ( People v. Fuller, 24 N.Y.2d 292; People v. Donaldson, 25 N.Y.2d 38). In the absence of a statement which followed the statute, defendant's failure to request a hearing cannot be a waiver of his right. He could waive the right only if he made an intelligent, knowing choice, and without knowledge of his right he could not know of his choice. I do not believe that People v. Reyes ( 26 N.Y.2d 97) is decisive on the question of waiver. In that case the defendant was not entitled to the benefit of the right, for the statute had not become effective at the time that the defendant pleaded; and the prevailing opinion was explicit in saying that the constitutional question of the equal protection of the laws was not reached. As the question therefore appears open, I would apply the rule that a waiver must be established by clear evidence of a knowing choice (cf. McCarthy v. United States, 394 U.S. 459, 466; Fay v. Noia, 372 U.S. 391, 439; Moore v. Michigan, 355 U.S. 155, 160-161; Johnson v. Zerbst, 304 U.S. 458, 464; People v. Whitehurst, 25 N.Y.2d 389; People ex rel. Rohrlich v. Follette, 20 N.Y.2d 297, 300-301; People v. Ryan, 19 N.Y.2d 100, 105-106; People ex rel. Miller v. Martin, 1 N.Y.2d 406).