Appeal by defendant from a judgment of the County Court, Dutchess County, rendered June 10, 1970, convicting him of rape in the third degree, after a nonjury trial, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant contends that his waiver of trial by jury was ineffective because it was oral. Section 2 of article I of the Constitution of the State of New York provides: "A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense." The constitutional requirement of a written waiver was not complied with; therefore, no waiver occurred ( People v. Matthews, 35 A.D.2d 1049). Munder, Acting P.J., Latham, Shapiro, Christ and Benjamin, JJ., concur.