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Appellant Contends He Mistakenly Waived his Right to Jury Trial


A Nassau Petit Larceny Lawyer said that, in a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Nassau County, dated March 2, 2007, which, upon a fact-finding order of the same court dated January 2, 2007, made after a hearing, finding that the appellant committed acts, which, if committed by an adult, would have constituted the crimes of robbery in the second degree, grand larceny in the fourth degree, attempted robbery in the second degree (four counts), and attempted grand larceny in the fourth degree (four counts), adjudged him to be a juvenile delinquent and placed him on probation for a period of two years. The appeal from the order of disposition brings up for review the fact-finding order dated January 2, 2007.

A Nassau Criminal Lawyer said that, defendant was charged in a four-count indictment with robbery in the second degree (two counts), grand larceny in the third degree and petit larceny. On appearing before the trial court defendant, through counsel, requested a waiver of a jury trial. Because of the fact that his educational background was rather minimal, the record indicates that defendant was queried extensively and was informed not only as to his rights, but the extent and impact of the waiver, and that he was fully aware of the fact that he was waiving a trial by jury.

The evidence presented by the presentment agency established that the appellant was part of a group of individuals who surrounded three boys, demanded money from them, searched their pockets, and hit them. The complainant arrived at the scene at some point after the incident began, and there was no evidence that any of the perpetrators directed any conduct, threats, or words toward her. Since the presentment agency failed to demonstrate that complainant was anything more than a mere spectator, the evidence was legally insufficient to establish that the appellant committed acts against her which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree and attempted grand larceny in the fourth degree.

Contrary to the appellant’s contention, the evidence was legally sufficient to establish the remaining charges, despite the lack of identification testimony during the fact-finding hearing. The statement made by the appellant to a police officer, which was reduced to writing and signed by the appellant, clearly established the appellant’s identity as one of the perpetrators, and was sufficiently corroborated by the testimony of the complaining witnesses.

The appellant’s remaining contention is unpreserved for appellate review.

We find that the Trial Judge properly complied with the defendant’s constitutional and statutory rights in allowing the jury trial waiver. However, the trial minutes disclose that the court neglected to state what counts or crimes it was considering on the question of the defendant’s guilt. Despite defense counsel’s failure to properly object to this omission, we find that such omission is a violation of the mandate of CPL 320.20 (subd. 5) and thus fatal to the People’s case.

We take note that only the complaining witness and defendant testified. For some unexplained reason the arresting officer was not called; nor did any other person appear who may have been able to shed light on the defendant’s innocence or guilt. Furthermore, the defendant’s behavior following the alleged robbery was inconsistent with the findings of guilt. Upon a reading of the record, the defendant’s guilt was not established beyond a reasonable doubt.

Although the defendant pleaded guilty to criminal trespass, it is obvious that the plea was induced by his conviction after trial of robbery and grand larceny. The guilty plea and conviction (under indictment No. 41955) of criminal trespass must therefore be reversed and the plea vacated.

Accordingly, the court held that the order of disposition is modified, on the law, by deleting the provision thereof adjudicating the appellant a juvenile delinquent based upon the finding that he committed, against the complainant acts which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree and attempted grand larceny in the fourth degree, and substituting therefor a provision dismissing those counts of the petition; as so modified, the order of disposition is affirmed, without costs or disbursements, and the fact-finding order dated January 2, 2007 is modified accordingly.

If you are facing robbery charges, seek the legal representation of a Nassau Criminal Attorney and Nassau Grand Larceny Attorney at Stephen Bilkis and Associates.

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