Opinion
1346
June 10, 2003.
Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered December 12, 2000, convicting defendant, after a nonjury trial, of criminal possession of a controlled substance in the second degree, and sentencing him, as a second felony offender, to a term of 7 years to life, unanimously affirmed.
Donald J. Siewert, for respondent.
Jan Hoth Pro Se, for defendant-appellant.
Before: Nardelli, J.P., Tom, Andrias, Lerner, JJ.
Defendant's challenge to the voluntariness of his written jury waiver, duly executed in open court after a thorough allocution, requires preservation (People v. Johnson, 51 N.Y.2d 986), and we decline to review this unpreserved claim in the interest of justice. Were we to review this claim, we would find that the jury waiver was not rendered involuntary by the court's promise that if defendant opted for a nonjury trial, the highest charge, if any, upon which the court would convict him would be an A-II felony, instead of the A-I felony contained in the indictment (People v. Daniels, 209 A.D.2d 340). This arrangement was comparable to a constitutionally permissible negotiated plea, rather than to a statutory burden upon the right to a jury trial (compare, Matter of Hynes v. Tomei, 92 N.Y.2d 613, 624-625, cert denied 527 U.S. 1015).
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.