| People v Dixon |
| 2014 NY Slip Op 00027 [113 AD3d 1104] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Adrian Dixon, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael D. Smith of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered January 12, 2012. The judgment convicted defendant, after a nonjury trial, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following anonjury 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 NY2d620, 621 [1983]), is legally sufficient to support the conviction despite the fact that nowitness observed defendant in possession of the weapon (see People v Mateo, 13 AD3d987, 988 [2004], lv denied 5 NY3d 883 [2005]). Viewing the evidence inthe light of the elements of the crime in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Defendant failed to preserve for our review his contention that his waiver of the rightto a jury trial is invalid on the ground that the record does not establish that he signed thewritten waiver in open court (see People v Moran, 87 AD3d 1312, 1312 [2011], lvdenied 19 NY3d 976 [2011]; People v Brunson, 307 AD2d 323, 324 [2003],lv denied 100 NY2d 641 [2003]). In any event, that contention lacks meritinasmuch as the record of the waiver colloquy, which took place in open court,establishes that defendant discussed the waiver with defense counsel, stated that heunderstood the nature and consequences of the waiver, and acknowledged that he hadsigned the waiver form (seePeople v Badden, 13 AD3d 463, 463 [2004], lv denied 4 NY3d 796[2005]; Brunson, 307 AD2d at 324). Defendant's further contention that hiswaiver of the right to a jury trial is invalid on the ground that the written waiver bears anincorrect date is also unpreserved for our review (see CPL 470.05 [2]) and, inany event, does not warrant reversal. This Court "must determine an appeal withoutregard to technical errors or defects which do not affect the substantial rights of theparties . . . , and the error here exemplifies such a technicality" (People v Cepeda, 29 AD3d491, 492 [2006], lv denied 7 NY3d 810 [2006] [internal quotation marksomitted]).[*2]
Finally, we reject defendant's contention thatCounty Court erred in failing to rule on that part of his pretrial motion seeking dismissalof the indictment on the ground that the grand jury proceedings were defective. Therecord establishes that the court in fact denied that part of defendant's motion (cf. People v Jones, 103 AD3d1215, 1217 [2013], lv dismissed 21 NY3d 944 [2013]; People v Spratley, 96 AD3d1420, 1421 [2012], following remittal 103 AD3d 1211 [2012], lvdenied 21 NY3d 1020 [2013]). Present—Centra, J.P., Peradotto, Carni,Sconiers and Whalen, JJ.