Opinion
December 1, 1969
Appeal from a judgment of the County Court, Suffolk County, rendered May 23, 1969, adjudging appellant a youthful offender, after a nonjury trial to which he had consented, and imposing sentence. Judgment reversed, on the law, and a new trial, before a jury, granted. With respect to appellant's prime claim of error, we hold that the statutory requirement of a defendant's consent to a trial without a jury in order for him to be eligible for youthful offender treatment (Code Crim. Pro., § 913-g, subd. 3; § 913-h) is unconstitutional ( People v. Michael A.C. [ Anonymous], 32 A.D.2d 554; People v. Jerome C. [ Anonymous], 32 A.D.2d 840). With respect to appellant's additional claim of error, we hold that it is well settled that "adjudication as a youthful offender must rest upon a finding that the defendant committed the criminal acts charged against him in the indictment or information" ( People v. Sykes, 22 N.Y.2d 159, 163-164; People v. McKinney, 24 N.Y.2d 180, 183-184; Code Crim. Pro., § 913-j). Christ, Acting P.J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.