April 14, 1989
Appeal from the Niagara County Court, Hannigan, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted, in accordance with the following memorandum: The Constitution and applicable statutes unequivocally command that "crimes prosecuted by indictment shall be tried by a jury composed of twelve persons" (NY Const, art VI, § 18 [a]; CPL 260.10, 270.05 Crim. Proc. ; see also, People v. Warren, 145 A.D.2d 966; People v. Dean, 80 A.D.2d 695, 696). An indicted defendant cannot consent to a trial by fewer than 12 jurors (Cancemi v. People, 18 N.Y. 128; see also, People v. Ahmed, 66 N.Y.2d 307, 310-311, rearg denied 67 N.Y.2d 647; People v. Mitchell, 266 N.Y. 15, 18; People v. Cosmo, 205 N.Y. 91, 97, 100; People v. Thorn, 156 N.Y. 286, 294; People v. Guidici, 100 N.Y. 503, 508; Vose v. Cockcroft, 44 N.Y. 415, 422-423). Thus, notwithstanding defendant's consent to the procedure, the court erred in conducting a trial by 10 jurors. Since an indicted defendant's right to a trial by jury composed of 12 persons is fundamental and affects the organization of the court and the mode of proceedings prescribed by law, waiver and preservation principles do not preclude defendant from protesting the error for the first time on appeal (People v. Ahmed, supra, at 310, citing Cancemi v. People, supra).