Opinion
May 11, 1990
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Callahan, J.P., Denman, Pine, Balio and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant contends that his waiver of trial by jury is invalid because the waiver was not executed in "open court" as required by NY Constitution, article I, § 2 and CPL 320.10 (2). The validity of that contention cannot be determined on this record and must be established, "if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10" (People v. Johnson, 51 N.Y.2d 986, 988; see also, People v. Magnano, 158 A.D.2d 979).
The court erred in ordering that the sentence imposed on defendant's conviction for unauthorized use of a vehicle in the first degree (Penal Law § 165.08) be served consecutively to the sentences of robbery in the first and second degrees and attempted sodomy in the first degree. Commission of a class A, B, C or D felony is a material element of unauthorized use of a vehicle in the first degree; thus, the sentences must be served concurrently (Penal Law § 70.25; see, People v Catone, 65 N.Y.2d 1003; People v. Coleman, 138 A.D.2d 963, lv denied 72 N.Y.2d 857).
We have reviewed defendant's remaining contentions and find them to be lacking in merit.