I would reverse the judgment of conviction of June 28,1967 entered on the verdict of the jury and the order entered October 18, 1968 denying defendant’s application to waive a jury trial, grant the motion, and direct a new trial before a Judge other than the one who presided at the jury trial.
In 1966 an indictment was returned charging defendant in two counts with the crimes of murder, first degree, in that on September 1,1966 with premeditation and deliberation he killed his natural mother and father. Prior to the commencement of the jury trial defendant filed a formal written instrument with the court waiving a jury trial. The court denied the application “in the exercise of its judicial discretion.” It cited People v. Diaz (10 A D 2d 80, affd. 8 N Y 2d 1061) and stated that since it was vested with discretion ‘ ‘ I exercise the discretion and deny the application.” The jury found defendant guilty of murder, first degree on the first count, and murder, second degree on the second count. Concurrent terms of 25 years to life were imposed.
*254Upon argument of the appeal from the judgment of conviction we were “ left to speculation as to the reason for the denial (of the motion), and (since) speculation provides no substitute for a reason compelling rejection” (People v. Duchin, 16 A D 2d 483, 485-486, affd. 12 N Y 2d 351) we held the appeal and remitted for further proceedings. In writing (30 A D 2d 769) . we stated that the ultimate question was '‘ whether or not the trial court improvidently exercised its discretion in denying the application. * * * The written instrument was legally sufficient to alert the trial court to the necessity of obtaining further facts, by hearing or otherwise, upon which its discretion could have been exercised.” We also granted defendant permission to elaborate upon his reasons for seeking to waive a jury trial.
Thereafter, a formal hearing was held before the Trial Judge at which a new writing executed by defendant and his attorneys was presented. Therein, there was a further statement elaborating upon defendant’s reasons, for seeking to waive a jury trial. The trial court adhered to its original decision and again denied the motion. I find it unnecessary to review the several grounds set forth by the court in its memorandum in an attempt to sustain its original decision, except to state that its ambiguous finding that ‘ ‘ It seems doubtful to this court that this defendant fully understood the right he was giving up by requesting a waiver of a jury trial ’ ’ is contrary to the proof. I would find that the waiver prior to trial and the more recent one were knowingly and intelligently made with the advice and assistance of his two attorneys.
The guidelines have been recently and precisely stated in (People ex rel. Rohrlich v. Follette, 20 N Y 2d 297, 300-301): “ Since the passage of the amendment [to section 2 of article I of the New York Constitution] the rule which has evolved from the cases is that the requirement of judicial approval is designed to insure that the defendant’s waiver is a knowing and intelligent one and that the discretion of the Trial Judge to deny a defendant’s request to waive a jury trial is limited to those cases in which some ‘ compelling ground arising out of the attainment of the ends of justice ’ requires that the request be denied. (People v. Duchin, 16 A D 2d 483, 485, affd. 12 N Y 2d 351.) Thus, where the defendant is requesting judicial approval to waive a trial by jury with the intent of securing some unfair ‘ procedural advantage — such as, for instance, a separate trial on an indictment involving several separate defendants jointly charged with the commission of crime, ’ the request may prop*255erly be denied. (People v. Duchin, 12 N Y 2d 351, 353, supra; People v. Dias, 10 A D 2d 80, affd. 8 N Y 2d 1061.) ”
In my opinion the refusal of the Trial Judge herein to grant the request to waive a jury trial was an improvident exercise of discretion. “ The constitutional amendment authorizing a waiver with the approval of the Trial Judge was never intended to empower the Trial Judge to refuse a requested waiver merely because, in a disagreeable case, he desires to be exempted from the responsibility of passing on the facts.” (People ex rel. Rohrlich v. Follette, supra, p. 301.) I find no “compelling ground arising out of the attainment of the ends of justice ” that would sustain the denial of the applications.
The Trial Judge, who denied the motion, also presided at a pretrial hearing at which certain statements were found to have been voluntarily made by defendant. In his memorandum the Judge stated that it was “ hardly likely that the same Judge would reverse his finding at the trial that he made following the Huntley hearing.” The short answer is that the new and nonjury trial should have been directed to have been had before a different Judge. The fact that defendant and his attorneys were content to proceed to trial before the same Judge should not now be used as a weapon against appellant to justify the improvident exercise of discretion by the court in denying the application for a nonjury trial.
The judgment of -conviction and the order denying the application to waive a jury trial should be reversed and a new trial granted before the court without a jury.
Goldman, Wither and Henry, JJ., concur with Del Vecchio, J.; Bastow, P. J., dissents and votes to reverse and grant a new trial before the court without a jury.
Order entered October 18, 1968, and judgment, affirmed.