People v. Lawrence S. , 33 A.D.2d 775 ( 1969 )

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. Judgment reversed, on the law, and a new trial, before a jury, granted. 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 Grim. 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). Christ, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.