People v. White

155 A.D.2d 953, 547 N.Y.S.2d 768, 1989 N.Y. App. Div. LEXIS 14824

Opinions

— Judgment modified on the law and as modified affirmed, in accordance with the following memorandum: The evidence was sufficient to support defendant’s conviction of vehicular manslaughter and his sentence of 2 to 6 years’ incarceration is not harsh and excessive.

There is no merit to defendant’s contention that the Court to whom the case had been assigned forced defendant to forego a jury trial by conditioning its recusal upon defendant’s waiver of a jury trial. After a pretrial conference, defendant entered a plea of guilty which he was later permitted to withdraw. Immediately after defendant withdrew his plea, defense counsel made a motion requesting the court to disqualify itself, stating: "Your Honor, the motion is made because Mr. White and I have repeatedly discussed, during the course of this case, whether to proceed in a jury or nonjury trial, and at this time it is our intention to proceed to trial on a nonjury basis, and that is made with the knowledge that in the event the matter does go to a jury trial it will return to this Court.” The court responded that the defendant had an absolute right to waive a jury trial and that during negotiations the court did acquire information about the facts of the case which would prevent it from acting as a trier of the facts in a nonjury trial. Therefore, the court stated, it would transfer the case to another court "for immediate action on a nonjury trial.” Defense counsel indicated his approval and the prosecutor requested, "in the event the defendant does change his mind and does request a jury trial, that the case be ordered back to this part of court.” The court replied, "That is so”, and defense counsel signified his approval by stating, "Thank you, Your Honor.” Thus, not only did defendant fail to preserve the issue for review, but his motion for recusal of the court from a nonjury trial was granted in exactly the manner he requested. The record contains no request that the court recuse itself from a jury trial.

We reject defendant’s contention that the evidence was insufficient to prove that he violated Vehicle and Traffic Law §600.

As conceded by the District Attorney, criminally negligent homicide is a lesser included offense of vehicular homicide and, therefore, the conviction of criminally negligent homicide must be reversed and the sentence imposed thereon vacated.

All concur, except Green, J., who concurs in part and dissents in part and votes to reverse, in the following memorandum.