(dissenting). Of course, the power under some circumstances to disapprove waiver of a jury trial by a defendant must be a corollary of the power to approve; otherwise the latter is a mere mandate to rubber-stamp approval. I cannot acquiesce in the breadth of the majority holding, however, as to the scope of the discretion to approve or disapprove lodged with the Trial Judge, and the manner in which it is to be exercised. Nor can I, therefore, agree that if the constitutional provision confers even the slightest modicum of discretion on the Trial Judge, the judgment must be affirmed.
*95In the exercise of such discretionary power the essential element to be taken into consideration is the interest of the individual defendant, and not the convenience of the court and the prosecutor.* While the overriding interest of the State must inevitably be the protection of society, the rights of individual members of that society must likewise be protected when they are accused of a crime and come into conflict with the machinery of the State.** The comments made during the 1938 New York State Constitutional Convention by Judge Sears, which are quoted in a footnote of the majority opinion, were preceded by the following colloquies, which indicate the delegates’ concern for the protection of the defendant.
Judge Sears said as follows: “ The proposal is a very simple one. It is intended to protect the rights of the defendant, to assure him by the necessity for an approval by the judge of full opportunity to understand what he is doing. ” (New York State Constitutional Convention, 1938, Revised Record, Vol. II, p. 1274.) A little later, in response to an inquiry by delegate Edward Weietfeld, now a distinguished United States District Judge, who had recommended that the words ‘ 6 after consultation with counsel ” (p. 1276) be added for the 'protection of the defendant, Judge Sears said: “We thought that that was sufficiently covered by requiring the approval of the judge, because we believe that you could rely upon the judge of the very court which had jurisdiction to try the case to see that the defendant was well advised * * *. All I can say is, it was carefully considered, and I believe that the protection which we provide in the requirement that it should be in open court, in the presence of the judge and with the judge’s approval, which was not included, I think, in your amendment, that with those protections we had nothing to fear for such a defendant. That was our view ” (ibid., pp. 1276-1277).
The Constitutional Convention evidently placed its faith in the judge as the courtroom personality best calculated to make certain that a defendant seeking to waive trial by jury comprehends all the consequences of his decision. I believe that the discretion of a Trial Judge in denying to a defendant in a criminal case the right to waive a jury trial may not be motivated *96primarily by concern for a tidy trial. It is no answer to refuse the request of a defendant to withdraw consideration of his case from the jury in a joint trial because it might “ create a cumbersome proceeding”. Such difficulties as may inhere in a joint trial to be decided in part by the court and in part by the jury, are minimal in contrast to the dominant importance of according ¡to a criminal defendant a fair trial free of any taint of passion or prejudice. And, if needs be, the duplicative effort and court processes involved in a separate trial must likewise yield to these considerations. To prevent the use of the right to waive a jury as a device for delay or severance, the Trial Judge should take care that the record reflects the defendant’s complete comprehension of the nature and consequences of his decision, to be available upon a possible subsequent application to withdraw the waiver.
In the most complex civil case, with many plaintiffs and third-party plaintiffs, defendants and third-party defendants, some may proceed to trial by jury and some may waive jury trial. The right so to waive is absolute (N. Y. Const., art. I, § 2; Civ. Prac. Act, § 426). The causes of action may be severed, or tried jointly, in the sound discretion of the Judge. There may be mutterings about the parties’ motivations in such trial strategy, but by this time no one maintains responsibly that our Anglo-American juridical system cannot accommodate successfully and fairly to such a litigation situation. Surely the rights of a criminal defendant are not to be restricted by considerations of convenience which are daily overcome in civil litigation. Even if the trial court has the broad discretion that is accorded it in the majority opinion, it would in my opinion constitute an abuse of discretion to withhold approval on the ground that a nonjury trial “ would have imposed an unwarranted burden upon the prosecutor and the court ”.
Certainly the resources of a criminal court in adapting to the inconvenience of a difficult and arduous trial or sequence of trials will be no less effective than those of a civil court. It is unthinkable that a court system reflecting a society so preoccupied with the rights of an accused would subordinate those rights to functional considerations.
The judgment of conviction should be reversed and a, new trial ordered.
Rabin, Valbnte and Bastow, JJ., concur with M. M. Frank, J.; Botein, P. J., dissents and votes to reverse and grant a new trial in opinion.
Judgment affirmed.
The Federal Rules of Criminal Procedure (rule 23, subd. [a]) import an element in addition to the consideration of the best interests of the defendant, for thereunder the waiver must be “with the approval of the court and the consent of the government”. (Emphasis supplied.) This accounts for the holding in Mason v. United States (250 F. 2d 704) and the dictum in Patton v. United States (281 U. S. 276, 312).
See the excellent discussion of this problem by Hall, Has the State a Right to Trial by Jury in Criminal Cases?, 18 A. B. A. J. 226.