| People v Lopez |
| 2019 NY Slip Op 04869 [173 AD3d 528] |
| June 18, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Lopez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), forrespondent.
Judgment, Supreme Court, New York County (James M. Burke, J.), rendered July 11, 2017,convicting defendant, after a nonjury trial, of criminal trespass in the second degree, andsentencing him to a term of one year, unanimously affirmed.
Defendant's legal sufficiency claim is unpreserved, and we decline to review it in the interestof justice. As an alternative holding, we reject it on the merits. We also find that the verdict wasnot against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Althoughdefendant asserts that the People's case was based entirely on hearsay, that is, grand jury minutes,those minutes were received in evidence by stipulation. The evidence established defendant madea knowingly unlawful entry into the victims' apartment, by means of force and threats ofviolence.
Defendant did not preserve his claim that the court erred in failing to announce that it wouldbe considering the lesser included offense of second-degree trespass (see People vJackson, 166 AD2d 356 [1st Dept 1990], lv denied 77 NY2d 839 [1991]), and wedecline to review it in the interest of justice. As an alternative holding, we find that defendantwas not prejudiced in any way.
Defendant's challenge to the validity of his duly executed, open-court jury waiver is likewiseunpreserved (see People v Johnson, 51 NY2d 986, 987 [1980]), and we decline to reviewit in the interest of justice. As an alternative holding, we find that defendant made a knowing,intelligent and voluntary waiver after an extensive and appropriate colloquy (see People v Smith, 6 NY3d 827,828 [2006], cert denied 548 US 905 [2006]). Defendant asserts that because the onlyevidence consisted of grand jury minutes received by stipulation, and because there were noopening statements or summations, his trial was "bizarre" and "unrecognizable," so that theseunusual features should have been addressed by the court in its jury waiver colloquy. However,this type of trial was permissible (see People v Williams, 161 AD2d 295 [1st Dept1990]), and it did not require the court to make a special inquiry of defendant (see People vMills, 103 AD2d 379 [2d Dept 1984]).
Finally, we note that, according to defendant, a fair reading of the record is that the court andparties had agreed in advance of the nonjury trial that a misdemeanor conviction would beappropriate. Even assuming that to be the case, there is every indication that defendant, a secondfelony offender ineligible for a misdemeanor plea, welcomed the opportunity to obtain amisdemeanor conviction by way of this abbreviated trial. Concur—Sweeny, J.P.,Manzanet-Daniels, Kapnick, Oing, Singh, JJ.