Opinion
2014-01-3
The PEOPLE of the State of New York, Respondent, v. Adrian DIXON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael D. Smith of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael D. Smith of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a nonjury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). Contrary to defendant's contention, we conclude that the evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction despite the fact that no witness observed defendant in possession of the weapon ( see People v. Mateo, 13 A.D.3d 987, 988, 786 N.Y.S.2d 671, lv. denied5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484). Viewing the evidence in the light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we further conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant failed to preserve for our review his contention that his waiver of the right to a jury trial is invalid on the ground that the record does not establish that he signed the written waiver in open court ( see People v. Moran, 87 A.D.3d 1312, 1312, 930 N.Y.S.2d 353, lv. denied19 N.Y.3d 976, 950 N.Y.S.2d 358, 973 N.E.2d 768; People v. Brunson, 307 A.D.2d 323, 324, 762 N.Y.S.2d 509, lv. denied100 N.Y.2d 641, 769 N.Y.S.2d 207, 801 N.E.2d 428). In any event, that contention lacks merit inasmuch as the record of the waiver colloquy, which took place in open court, establishes that defendant discussed the waiver with defense counsel, stated that he understood the nature and consequences of the waiver, and acknowledged that he had signed the waiver form ( see People v. Badden, 13 A.D.3d 463, 463, 785 N.Y.S.2d 748, lv. denied4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87; Brunson, 307 A.D.2d at 324, 762 N.Y.S.2d 509). Defendant's further contention that his waiver of the right to a jury trial is invalid on the ground that the written waiver bears an incorrect date is also unpreserved for our review ( seeCPL 470.05[2] ) and, in any event, does not warrant reversal. This Court “must determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties ..., and the error here exemplifies such a technicality” (People v. Cepeda, 29 A.D.3d 491, 492, 816 N.Y.S.2d 437, lv. denied7 N.Y.3d 810, 822 N.Y.S.2d 485, 855 N.E.2d 801 [internal quotation marks omitted] ).
Finally, we reject defendant's contention that County Court erred in failing to rule on that part of his pretrial motion seeking dismissal of the indictment on the ground that the grand jury proceedings were defective. The record establishes that the court in fact denied that part of defendant's motion ( cf. People v. Jones, 103 A.D.3d 1215, 1217, 962 N.Y.S.2d 524, lv. dismissed21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140; People v. Spratley, 96 A.D.3d 1420, 1421, 946 N.Y.S.2d 361, following remittal 103 A.D.3d 1211, 959 N.Y.S.2d 348, lv. denied21 N.Y.3d 1020, 971 N.Y.S.2d 502, 994 N.E.2d 398).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.