People v. Badden

Appellate Division of the Supreme Court of New York

People v. Badden

13 A.D.3d 463, 785 N.Y.S.2d 748, 2004 N.Y. App. Div. LEXIS 15234

Appellate Division of the Supreme Court of the State of New York·Decided December 13, 2004·Published·Cited by 7 cases

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lewis, J.), rendered March 12, 2001, convicting him of criminal sale of a controlled substance in the third degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his waiver of his right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05 [2]; People v Magnano, 77 NY2d 941 [1991], cert denied 502 US 864 [1991]; People v Brunson, 307 AD2d 323 [2003]). In any event, the defendant’s contention is without merit. The record is clear that the defendant engaged in a lengthy discussion with his attorney about the matter during a 10-day adjournment. In open court, the trial judge, with the written, executed waiver form in hand, asked the defendant if the defendant intended to waive his right to a jury trial, and the defendant replied “yes.” Although the waiver itself may not have been signed in open court, the entire colloquy about the waiver took place in open court, thus rendering the waiver valid (see People v Brunson, supra; People v Perez, 213 AD2d 351 [1995]; cf. People v Davidson, 136 AD2d 66 [1988]).

The defendant’s remaining contention is without merit. S. Miller, J.P., Krausman, Mastro and Fisher, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lewis, J.), rendered March 12, 2001, convicting him of criminal sale of a controlled substance in the third degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that his waiver of his right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05 [2]; People v Magnano, 77 NY2d 941 [1991], cert denied 502 US 864 [1991]; People v Brunson, 307 AD2d 323 [2003]). In any event, the defendant’s contention is without merit. The record is clear that the defendant engaged in a lengthy discussion with his attorney about the matter during a 10-day adjournment. In open court, the trial judge, with the written, executed waiver form in hand, asked the defendant if the defendant intended to waive his right to a jury trial, and the defendant replied “yes.” Although the waiver itself may not have been signed in open court, the entire colloquy about the waiver took place in open court, thus rendering the waiver valid (see People v Brunson, supra; People v Perez, 213 AD2d 351 [1995]; cf. People v Davidson, 136 AD2d 66 [1988]).

The defendant’s remaining contention is without merit. S. Miller, J.P., Krausman, Mastro and Fisher, JJ., concur.

People v. Badden, 13 A.D.3d 463, 785 N.Y.S.2d 748, 2004 N.Y. App. Div. LEXIS 15234 (N.Y. Ct. App. 2004).

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Opinion

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