SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1295 

KA 12-01692 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

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. 

 

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, of criminal 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 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 NY2d 620, 621), 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 AD3d 987, 988, lv denied 5 NY3d 883). Viewing the evidence

in the light of the elements of the crime in this nonjury trial (see

People v Danielson, 9 NY3d 342, 349), we further conclude that the

verdict is not against the weight of the evidence (see generally

People v Bleakley, 69 NY2d 490, 495). 

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 AD3d 1312, 1312, lv denied 19 NY3d

976; People v Brunson, 307 AD2d 323, 324, lv denied 100 NY2d 641). 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 AD3d 463,

463, lv denied 4 NY3d 796; Brunson, 307 AD2d at 324). Defendant’s
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KA 12-01692 

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 (see CPL 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 AD3d 491,

492, lv denied 7 NY3d 810 [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

AD3d 1215, 1217, lv dismissed 21 NY3d 944; People v Spratley, 96 AD3d

1420, 1421, following remittal 103 AD3d 1211, lv denied 21 NY3d 1020).

 

Entered: January 3, 2014 Frances E. Cafarell

Clerk of the Court