Opinion
2008-959 Q CR.
Decided April 21, 2010.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (William Harrington, J.), rendered March 26, 2008. The judgment convicted defendant, after a nonjury trial, of sexual abuse in the second degree and endangering the welfare of a child.
ORDERED that the matter is remitted to the Criminal Court to hear and report on the question of whether defendant formally waived his right to a jury trial in a writing signed by him in person in open court in the presence and with the approval of the court, and appeal held in abeyance in the interim. The Criminal Court is directed to file its report with all convenient speed.
PRESENT: GOLIA, J.P., PESCE and RIOS, JJ.
After a nonjury trial, defendant was convicted of sexual abuse in the second degree (Penal Law § 130.60) and endangering the welfare of a child (Penal Law § 260.10). On appeal, defendant argues that his waiver of a trial by jury was not "knowingly, intelligently and understandingly made," as "the record does not indicate" that he executed a written waiver in open court and because he was not provided with the services of a Spanish language interpreter when he made the waiver.
Defendant's contention that the waiver of his right to a jury trial was invalid because he was not provided with the services of a Spanish language interpreter is unpreserved ( see People v Johnson, 51 NY2d 986; People v Tamarez, 213 AD2d 261). We note that defendant asks this court to conclude that he required the services of a Spanish language interpreter during the court's inquiry into the alleged waiver based only upon his use of an interpreter during his own testimony, which we, in any event, would decline to do ( see People v Ramos, 26 NY2d 272, 275 ["the fact that the defendant testified in Spanish does not mandate a conclusion that the defendant did not adequately understand the English language to meaningfully assist in his own defense"]).
In order to waive the right to a jury trial in a criminal case, a defendant must sign a writing in open court in the presence, and with the approval, of the court ( see NY Const, art I, § 2; CPL 320.10). The People bear the burden of proving that such a waiver has been made ( see People v Basora, 90 AD2d 851), and, in this case, the People are unable to furnish the writing by which defendant allegedly waived his right to a jury trial. However, a review of the trial transcript reveals that the court directed defendant to sign a written waiver at trial, and it is possible to infer that the court's instruction was followed. Moreover, defendant has not affirmatively denied having signed a written waiver in open court and argues only that the record does not indicate that he did. We are unable to determine this issue on the record before us, and a hearing is therefore necessary to afford the People an opportunity to prove that defendant did "knowingly, in a writing, and in open court," waive his right to a jury trial ( id. at 852; see also People v Watson , 38 AD3d 1196 ; People v Chillino , 10 Misc 3d 136 [A], 2005 NY Slip Op 52129[U] [App Term, 9th 10th Jud Dists 2005]). The hearing should be held before a judge other than Judge Harrington, since it is possible that he may be called as a witness.
Accordingly, we hold the appeal in abeyance and remit the matter to the Criminal Court to hear and report on this issue.
Golia, J.P., Pesce and Rios, JJ., concur.