| People v Moran |
| 2011 NY Slip Op 06711 [87 AD3d 1312] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rabah E.Moran, Also Known as Terry McKee, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John R. Schwartz, A.J.), renderedJanuary 14, 2008. The judgment convicted defendant, upon a nonjury verdict, of rape in the firstdegree and false personation.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of,inter alia, rape in the first degree (Penal Law § 130.35 [1]). Defendant failed to preservefor our review his contentions that his purported waiver of the right to a jury trial is invalidbecause the record does not establish that he signed the written waiver in open court, as requiredby CPL 320.10 and article I, § 2 of the New York Constitution (see People vMagnano, 158 AD2d 979 [1990], affd 77 NY2d 941 [1991], cert denied 502US 864 [1991]; People v Brown, 81AD3d 499 [2011]), and that he did not voluntarily waive his right to a jury trial (see People v Dixon, 50 AD3d1519 [2008], lv denied 10 NY3d 958 [2008]; People v White, 43 AD3d 1407 [2007], lv denied 9 NY3d1010 [2007]; People v Jackson, 26AD3d 781, 781-782 [2006], lv denied 6 NY3d 849 [2006]). In any event, thosecontentions are without merit. Defendant repeatedly waived his right to a jury trial in open courtand executed a written waiver of that right prior to the commencement of trial, and the recordestablishes that defendant's waiver was knowing, voluntary and intelligent (see People v O'Diah, 68 AD3d787, 787-788 [2009], lv denied 14 NY3d 803 [2010], reconsideration denied15 NY3d 776 [2010]; People vLaConte, 45 AD3d 699 [2007], lv denied 10 NY3d 767 [2008]; People v Jackson, 26 AD3d 781,781-782 [2006], lv denied 6 NY3d 849 [2006]). Although the transcript of the waiverproceedings does not conclusively establish that defendant signed the written waiver in opencourt, we note that the waiver form, which was signed by defendant, defense counsel, and thetrial judge, expressly states that the waiver was made in open court (see Brown, 81 AD3dat 500; see also Magnano, 158 AD2d 979). Further, the record contains an extensivecolloquy concerning defendant's waiver of his right to a jury trial (see Brown, 81 AD3d at500; People v Badden, 13 AD3d463 [2004], lv denied 4 NY3d 796 [2005]; People v Perez, 213 AD2d 351[1995], lv denied 85 NY2d 978 [1995]).
Finally, we reject defendant's contention that he was denied effective assistance of counsel bythe cumulative effect of alleged errors at trial. Viewing the evidence, the law and the [*2]circumstances of this case, in totality and as of the time of therepresentation, we conclude that defense counsel provided meaningful representation (seegenerally People v Baldi, 54 NY2d 137, 147 [1981]). Present—Smith, J.P., Fahey,Peradotto, Lindley and Sconiers, JJ.