I agree with the majority that in a noncapital criminal case, a defendant does not have an absolute right to waive a trial by jury. However, I disagree that in this case the denial of defendant’s tender of a non jury trial was an improvident exercise of discretion by the trial court. In my opinion, the denial was a fair and proper exercise of discretion because (1) a 12-year-old child was involved ; (2) no evidence was presented to the trial court that defendant could not receive a fair and impartial trial by a jury, nor is any claim now made that he failed to receive such a trial by jury; (3) the record is devoid of proof that the trial was held in hostile surroundings; (4) almost two years elapsed between the date of the offense and the date of trial; and (5) finally, no claim is made that defendant was not guilty or that he has any defense on the merits.
In my opinion, the requirements of section 2189-a of the Penal Law with respect to sentence were waived when defense counsel specifically requested that the indeterminate sentence be imposed, as indeed it was.
Ughetta, Christ and Hill, JJ., concur with Hopkins, J.; Beldock, P. J., dissents and votes to affirm, in opinion.
Judgment reversed on the law, and a new trial ordered. We have considered the facts; we affirm the findings of fact implicit in the jury’s verdict.