People v. Reed

Feb 4, 2005
Versions:15 A.D.3d 911
788 N.Y.S.2d 757
2005 N.Y. App. Div. LEXIS 1147

Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), rendered June 20, 2002. The judgment convicted defendant, after a nonjury trial, of burglary in the second degree and petit larceny.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of burglary in the second degree (Penal Law § 140.25 [2]) and petit larceny (§ 155.25). We reject defendant‘s contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). “The credibility determinations of [Supreme] Court are entitled to great deference . . . , and there is no basis to conclude that the court failed to give the evidence the weight that it should be accorded” (People v Scott, 289 AD2d 974, 975 [2001], lv denied 97 NY2d 733 [2002]; see People v Woodworth, 8 AD3d 1010 [2004], lv denied 3 NY3d 683 [2004]). Defendant further contends that he did not knowingly, intelligently and voluntarily waive his right to a jury trial because the waiver was based on the court‘s allegedly erroneous Molineux ruling, which the court subsequently reversed during trial. Defendant failed to preserve his contention for our review (see People v Williams, 5 AD3d 1043, 1044 [2004], lv denied 2 NY3d 809 [2004]; People v Wegman, 2 AD3d 1333, 1334 [2003], lv denied 2 NY3d 747 [2004]) and, in any event, it is without merit. There is no indication that the court‘s initial Molineux ruling, even if erroneous, caused defendant to waive his right to a jury trial (see generally People v Miller, 217 AD2d 810, 811 [1995], lv denied 86 NY2d 798 [1995]). “Defendant waived his right to a jury trial in open court and in writing in accordance with the requirements of NY Constitution, art I, § 2 and CPL 320.10 (2) . . . , and the record establishes that defendant‘s waiver was knowing, voluntary and intelligent” (Wegman, 2 AD3d at 1334).

Present—Pigott, Jr., P.J., Hurlbutt, Gorski, Pine and Hayes, JJ.