People v. Kenneth A.

861 Grulotta, J., dissents and votes to affirm the order, with the following memorandum with which Christ, J., concurs: In our opinion, under the peculiar facts of this ease, defendant’s execution of a waiver of the right to a jury trial did not deprive him of the right to raise the issue thereon in this proceeding. Since defendant was compelled to execute the waiver as a prerequisite to being afforded youthful offender treatment, his actions did not constitute an “ ‘ intentional relinquishment or abandonment of a known right or privilege ’ ” (Fay v. Noia, 372 U. S. 391, 439). Nor do we believe that defendant is barred from raising the issue by virtue of the fact that he failed to argue the point upon his direct appeal from the judgment of conviction. Even under such circumstances, post-conviction relief is available to challenge the deprivation of a fundamental constitutional right (People ex rel Keitt v. McMann, 18 N Y 2d 257). We note in this regard that the instant proceeding was instituted only three months after our affirmance of the judgment.