The Second Department determined the sex offender did not validly waive his right to a jury trial. Although there was evidence he intended to waive a jury trial (emails) there was no on-the-record waiver:
The State moves to enlarge the record on appeal to include emails from the appellant’s trial counsel which, the State contends, demonstrate that the appellant validly waived his right to a jury trial. However, in Matter of State of New York v Ted B. (132 AD3d 28), we held that a respondent in a Mental Hygiene article 10 proceeding may validly waive the right to a jury trial only where an on-the-record colloquy shows that the respondent made a knowing and voluntary waiver of such right, after an opportunity for consultation with his or her attorney. As an alternative to a personal appearance in court, a respondent may participate in such a colloquy via video conferencing … . While the State urges us to find a valid waiver based on emails from the appellant’s trial counsel, such off-the-record communications, regardless of content, are insufficient to ensure that a respondent’s decision to “forgo his [or her] state constitutional and statutory right to a jury trial is the product of an informed and intelligent judgment and, thereby, protect the important liberty interests at stake in article 10 proceedings'” … . Matter of State of New York v Jesus M., 2017 NY Slip Op 01557, 2nd Dept 3-1-17
MENTAL HYGIENE LAW (PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD)/JURY TRIAL (MENTAL HYGIENE LAW, PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD)