Opinion
October 31, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
The relator appeals from an order which dismissed a writ of habeas corpus. The record substantiates that the relator, while represented by counsel, pleaded guilty to the charge of grand larceny, first degree. The alleged error claimed by the relator is that when he entered a plea of guilty, it should have been by written instrument instead of orally. The section of the Constitution to which the relator refers (art. I, § 2) provides that "A jury trial may be waived by the defendant in all criminal cases * * * by a written instrument signed by the defendant". This section is not applicable to the present factual situation. It applies not to a person electing to plead guilty to a charge but rather gives the defendant an election to stand trial before the court without a jury, which he is entitled to waive upon the signing of a written instrument as provided above. (See People ex rel. Brackett v. Martin, 266 App. Div. 939; appeal dismissed 295 N.Y. 888.) Order unanimously affirmed, without costs.