Because the constitutional (see NY Const, art VI, § 18) and statutory (see CPL 270.05 [1]) requirement that a jury in a felony case consist of 12 persons is not waivable, defendant’s conviction by an 11-person juiy of felony murder and attempted robbery must be reversed, notwithstanding defendant’s consent to proceed with 11 jurors after one juror became unavailable due to illness.
Contrary to the majority’s assertion, Cancemi v People (18 NY 128 [1858])—after almost 150 years—remains good law. A defendant exercising the right to a trial by jury must be tried by a panel of 12, and neither a court, a prosecutor nor a defendant can alter the parameters of this fundamental mode of a judicial proceeding; that modification is solely within the province of the Legislature. In Cancemi, we held that the constitutionally and legislatively-determined fundamental mode of a court’s proceeding is essential to ensuring due process of law and protecting a defendant’s liberty, and that the public interest in ensuring that citizens are not punished without due process of law trumps a defendant’s ability to control the trial. We further held that the mode of proceeding is not a right personal to a defendant which he or she can affect: “the trial must be by the tribunal and in the mode which the constitution and laws provide, without any essential change [and t]he public officer prosecuting for the people has no authority to consent to such a change, nor has the defendant” (Cancemi at 138).
The majority suggests that Cancemi, although never overruled, is no longer a bar to a defendant’s consent to a jury consisting of fewer than 12. This is so, because our concern that allowing a waiver of one juror would lead to a waiver of the entire jury—not available for criminal trials in 1858—has been alleviated by subsequent constitutional and statutory amendments that permit the waiver of the right to a jury trial in favor of a bench trial (see NY Const, art I, § 2; CPL 320.10). However, in deciding Cancemi, we stated that:
“It would be a highly dangerous innovation, in reference to criminal cases, upon the ancient and invaluable institution of trial by jury, and the constitution and laws establishing and securing that mode of trial, for the court to allow of any number short of a full panel of twelve jurors, and we think it ought not to be tolerated” (Cancemi, 18 NY at 138).
The majority opines that
*450“the history of article I, section 2 and our subsequent decisions construing the meaning of the provision’s evolving text reveal that there is no longer a constitutional impediment to a defendant consenting to the continuation of deliberations by 11 jurors in conformance with the explicit procedures set forth in article I, section 2” (majority op at 446).
I strongly disagree.
Article I, section 2 of the New York State Constitution refers to the complete waiver of a jury trial in favor of a bench trial, as the corresponding statutory provision—CPL 320.10—indicates. It does not refer to the waiver of a single juror. The majority seeks to tie the legislative history of the 1938 amendment to article I, section 2—authorizing a waiver of jury trial in favor of a bench trial—to the proposition that a defendant may waive the right to be tried by a 12-person jury by relying on the Judicial Council’s recommendations for that amendment. The Judicial Council “was created by statute in 1934 as a permanent research body to advise the [Legislature and the courts on improvements in the administration of judicial justice” (Saxe, The Judicial Council of the State of New York; Its Objectives, Methods, and Accomplishments, 35 Am Pol Sci Rev 933, 933-934 [Oct. 1941]). I do not believe that the Judicial Council’s isolated statement that “[i]t remains to be determined by judicial interpretation whether the proposed amendment will legalize trial by jury of less than twelve men, as well as a complete waiver of the jury” (2d Rep of NY Jud Council, at 100) indicates that it had thoughtfully considered allowing a defendant to consent to a jury of fewer than 12 persons, as the majority suggests (see majority op at 443-444). Further, the majority’s statement that: “The [Judicial] Council firmly believed that there was Tittle doubt at present that such waiver permitted under proper conditions w[ould] be a desirable and valuable part of criminal procedure’ ” (majority op at 443-444, quoting 2d Rep of NY Jud Council, at 100) simply refers to the primary subject of the 1938 amendment, a defendant’s ability to consent to a bench trial in lieu of a jury trial, not his or her ability to consent to an 11-person jury. Thus, there is no evidence in the 1938 legislative history of the amendment to article I, section 2 that the Legislature itself even considered legalizing the practice of allowing a defendant to consent to being tried by fewer than 12 jurors.
*451The majority suggests that because the waiver language in article I, section 2 for civil cases is identical to the waiver language for criminal cases, a defendant should be allowed to waive a trial by fewer than 12 jurors. We addressed this proposition in Cancemi. There, we noted that
“[t]here is, obviously, a wide and important distinction, between civil suits and criminal prosecutions, as to the legal right of a defendant to waive a strict substantial adherence to the established, constitutional, statutory and common law mode and rules of judicial proceedings. This distinction arises from the great difference in the nature of such cases, in respect to the interests involved and the objects to be accomplished” (Cancemi, 18 NY at 135-136).
There has been no constitutional or legislative amendment permitting a trial by fewer than 12 jurors and no “judicial interpretation”—until today—that allows such a drastic departure from the text of article VI, section 18 of the New York Constitution—adopted in 1961. That section formally enshrined in the language of our Constitution the number of jurors required in a criminal case—“that crimes prosecuted by indictment shall be tried by a jury composed of twelve persons, unless a jury trial has been waived as provided in section two of article one of this constitution” (NY Const, art VI, § 18 [a]).
Neither has our decisional law eroded this principle. People v Ryan (19 NY2d 100 [1966]) and People v Page (88 NY2d 1 [1996]), relied heavily upon by the People, do not support the proposition that a defendant may consent to being tried by fewer than 12 persons. Both of those cases involved the interpretation of a statute allowing for the substitution of a juror with an alternate juror.
The primary issue in Ryan was whether defense counsel could consent to the admission of an alternate juror into deliberations some five hours after they had begun. The Court disposed of that issue by holding that “the Constitution of this State, as it has been construed, prohibits the substitution of an alternate juror—in effect a 13th juror—after the jury has begun its deliberation” (Ryan, 19 NY2d at 104-105). The constitutional impediment to a defendant consenting to the substitution of an alternate juror after deliberations had begun that arose in Ryan was removed by the Legislature when it enacted CPL 270.35 in 1970.
*452In Page, the issue was whether the defendant could consent orally to the substitution of a juror pursuant to CPL 270.35 (1), which provides that “the defendant must consent to such replacement [and s]uch consent must be in writing and must be signed by the defendant in person in open court in the presence of the court.” The majority construes the Court’s statement “that a defendant could waive the right to a jury trial—as well as the inclusory right to a jury of 12—and thereby consent to substitution of an alternate for a deliberating juror” (Page, 88 NY2d at 8) to mean that a defendant may consent to a jury of fewer than 12 persons. However, the phrase “the inclusory right to a jury of 12” does not refer to the defendant’s ability to consent to a jury of fewer than 12 persons, but refers to the defendant’s ability to consent to the substitution of a juror—in effect creating the 13th juror (see Page at 8, citing Ryan at 104-105). Thus, a defendant forgoes “the inclusory right to a jury of 12” when consenting to the substitution of an alternate juror. In sum, neither Ryan nor Page provide support for the majority’s proposition that a defendant may consent to a jury composed of fewer than 12 persons, and “the inclusory right to a jury of 12” can only refer to the substitution of a juror with an alternate—a 13th or maybe even a 14th or 15th juror, not a decrease in the number of jurors deliberating and ultimately reaching a verdict.
As it is well established that constitutional language must be given its plain meaning, the clear and unambiguous language of article VI, section 18 dictates the requisite number of jurors. There is no language in the Constitution that permits a felony jury trial with fewer than 12 jurors. The People maintain—and the majority agrees—that we have allowed criminal defendants to waive many fundamental constitutional rights, such as the right to confront accusers, the right to counsel, the privilege against self-incrimination, the right to testify and to present a defense, the right to be free from unreasonable searches and seizures, and the right to be present during trial proceedings (see majority op at 448). Nevertheless, these rights cannot be characterized as fundamental “to the organization of the tribunals or the mode of proceeding prescribed by the constitution and the laws” (Cancemi, 18 NY at 137). Because the right to be tried by 12 persons is fundamental to the mode of proceeding and *453not personal to a defendant, it is distinguishable from the other rights that we have permitted a criminal defendant to waive. The right to be tried by a jury of 12—unless waived in favor of a bench trial—is inviolate and cannot be waived.
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.
Judges Read, Smith, Pigott and Jones concur with Judge Graffeo; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Kaye concurs.
Order affirmed.