SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

925 

KA 08-01253 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RABAH E. MORAN, ALSO KNOWN AS TERRY MCKEE, 

DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (John R.

Schwartz, A.J.), rendered January 14, 2008. The judgment convicted

defendant, upon a nonjury verdict, of rape in the first degree 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 preserve for our review his

contentions that his purported waiver of the right to a jury trial is

invalid because the record does not establish that he signed the

written waiver in open court, as required by CPL 320.10 and article I,

§ 2 of the New York Constitution (see People v Magnano, 158 AD2d 979,

affd 77 NY2d 941, cert denied 502 US 864; People v Brown, 81 AD3d

499), and that he did not voluntarily waive his right to a jury trial

(see People v Dixon, 50 AD3d 1519, lv denied 10 NY3d 958; People v

White, 43 AD3d 1407, lv denied 9 NY3d 1010; People v Jackson, 26 AD3d

781, 781-782, lv denied 6 NY3d 849). In any event, those contentions

are without merit. Defendant repeatedly waived his right to a jury

trial in open court and executed a written waiver of that right prior

to the commencement of trial, and the record establishes that

defendant’s waiver was knowing, voluntary and intelligent (see People

v O’Diah, 68 AD3d 787, 787-788, lv denied 14 NY3d 803, 15 NY3d 776;

People v LaConte, 45 AD3d 699, lv denied 10 NY3d 767; People v

Jackson, 26 AD3d 781, 781-782, lv denied 6 NY3d 849). Although the

transcript of the waiver proceedings does not conclusively establish

that defendant signed the written waiver in open court, we note that

the waiver form, which was signed by defendant, defense counsel, and

the trial judge, expressly states that the waiver was made in open
-2- 925 

KA 08-01253 

court (see Brown, 81 AD3d at 500; see also Magnano,158 AD2d 979). 

Further, the record contains an extensive colloquy concerning

defendant’s waiver of his right to a jury trial (see Brown, 81 AD3d at

500; People v Badden, 13 AD3d 463, lv denied 4 NY3d 796; People v

Perez, 213 AD2d 351, lv denied 85 NY2d 978).

Finally, we reject defendant’s contention that he was denied

effective assistance of counsel by the cumulative effect of alleged

errors at trial. Viewing the evidence, the law and the circumstances

of this case, in totality and as of the time of the representation, we

conclude that defense counsel provided meaningful representation (see

generally People v Baldi, 54 NY2d 137, 147).

Entered: September 30, 2011 Patricia L. Morgan

Clerk of the Court