Is Defendant's Oral Consent Sufficient to Effect a Waiver of His Rights to a Jury Trial ?
In People v. Ahmed, 66 N.Y.2d 307, 496 N.Y.S.2d 984, 487 N.E.2d 894 (1985), the Court reversed a conviction where the trial judge's law secretary reread to the jury portions of the testimony and reinstructed the jury on the law.
The Court rejected the People's argument that defendant's consent to this arrangement constituted either failure to preserve the issue for appeal or a waiver.
As to preservation, the Court listed errors that have been classified as affecting the organization of the court or the mode of proceedings and that therefore need not be preserved. Citing Cancemi v. People, 18 N.Y. 128 (1858), a pre-1938 case, the Court included "trial before fewer than twelve jurors in a criminal case" among those errors. 66 N.Y.2d at 310.
With respect to waiver, the Court found that defendant's oral consent was not sufficient to effect a waiver of his right to a jury trial.
Thus, while Ahmed stands for the proposition that defendant need not preserve any error in proceeding with less than twelve jurors, it appears to recognize that provided there is compliance with the requirements of waiving a jury trial, defendant may waive a jury trial or any rights incident thereto, such as the right to a trial by twelve jurors.
Interestingly, the First Department has declined to follow Ahmed where the defendant orally consented to the trial judge's absence during readback. People v. Mai, 175 A.D.2d 692, 573 N.Y.S.2d 90 (lst Dept. 1991).
The Court distinguished Ahmed on the basis that only readback and not reinstruction on the law was given in the Court's absence.