Summary
In People v. Basora (111 A.D.2d 248), a jury waiver was initially rejected where there was no proof that defendant executed a written waiver.
Summary of this case from People v. GreenOpinion
May 13, 1985
Appeal from the Supreme Court, Kings County (Lagana, J., Heller, J.).
Judgment affirmed. This case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
A defendant in a criminal trial may waive his right to a jury trial only "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" (NY Const, art I, § 2; see, CPL 320.10). After conducting a hearing pursuant to this court's order, the hearing court determined that there was no proof that defendant signed a waiver, nor was there judicial approval of any waiver.
We disagree. At the hearing, Assistant District Attorney Suzanne Melendez, the prosecutor assigned to defendant's case, testified that she "remember[ed] very distinctly the defendant signing the [jury waiver] paper". There was nothing in the record which impeached Ms. Melendez's credibility, and her testimony was uncontradicted inasmuch as none of the other witnesses remembered whether they had seen defendant sign the form or not. In short, we find sufficient evidence that defendant knowingly and intelligently waived his right to a jury trial ( see, People v McQueen, 52 N.Y.2d 1025; People v. Davis, 49 N.Y.2d 114; People v Christopher, 101 A.D.2d 504; People v. Caldwell, 107 Misc.2d 62). Titone, J.P., Thompson, Bracken and O'Connor, JJ., concur.