Opinion
July 20, 1970
Appeal by defendant from a judgment of the County Court, Nassau County, rendered June 20, 1968, adjudging him a youthful offender, after a nonjury trial, and imposing sentence, with execution thereof suspended. Judgment reversed, on the law, and case remitted to the County Court for a new trial before a jury. The findings of fact below have been affirmed. This court has recently held in People v. Michael A.C. ( 32 A.D.2d 554, affd. 27 N.Y.2d 79) 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 in order to render him eligible for youthful offender treatment, are unconstitutional (cf. Duncan v. Louisiana, 391 U.S. 145, 149; Matter of Gault, 387 U.S. 1, 12; Matter of Saunders v. Lupiano, 30 A.D.2d 803). Consequently, the judgment must be reversed and the case remitted to the trial court for a new trial before a jury. Inasmuch as the jury will now be the trier of the facts as to the guilt or innocence of the defendant as a youthful offender, the trial court should submit special questions to the jury, requiring it to make specific findings or answers, as to defendant's guilt or innocence regarding each of the material culpable acts charged in the Youthful Offender information ( People v. Sykes, 22 N.Y.2d 159, 163-165). Hopkins, Acting P.J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.