SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 1, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LAWRENCE S. [ANONYMOUS], APPELLANT
Appeal from a judgment of the County Court, Suffolk County, rendered May 23, 1969, adjudging appellant a youthful offender, after a non-jury trial to which he had consented, and imposing sentence.
Christ, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.
With respect to appellant's prime claim of error, we hold that the statutory requirement of a defendant's consent to a trial without a jury in order for him to be eligible for youthful offender treatment (Code Crim. Pro., § 913-g, subd. 3; § 913-h) is unconstitutional (People v. Michael A. C. [ Anonymous ], 32 A.D.2d 554; People v. Jerome C. [ Anonymous ], 32 A.D.2d 840). With respect to appellant's additional claim of error, we hold that it is well settled that "adjudication as a youthful offender must rest upon a finding that the defendant committed the criminal acts charged against him in the indictment or information" (People v. Sykes, 22 N.Y.2d 159, 163-164; People v. McKinney, 24 N.Y.2d 180, 183-184; Code Crim. Pro., § 913-j).
Judgment reversed, on the law, and a new trial, before a jury, granted.
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