Appellate Division of the Supreme Court of New York, 1998

People v. Dones

People v. Dones
Appellate Division of the Supreme Court of New York · Decided May 5, 1998
250 A.D.2d 381; 672 N.Y.S.2d 339; 1998 N.Y. App. Div. LEXIS 5282
People v. Dones

Opinion of the Court

—Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered June 4, 1996, convicting defendant, after a nonjury trial, of criminal mischief in the third degree, menacing in the second degree, and criminal possession of a weapon in the fourth degree, and sentencing him, as a *382second felony offender, to concurrent prison terms of 1½ to 3 years, 1 year and 1 year, respectively, unanimously affirmed.

The record indicates that defendant’s waiver of his right to a jury trial was entered voluntarily, knowingly and intelligently, by his signing a waiver form in open court, following the court’s thorough explanation of the significance of such a waiver. The court, which had presided over defendant’s Sandoval hearing and his trial under a different indictment, was not legally disqualified from conducting a nonjury trial despite having acquired information of guilt or innocence inadmissible before a fact finder. A Judge is presumed to have considered only the legally competent evidence adduced at the trial and to have excluded inadmissible evidence from his deliberations and verdict (People v Moreno, 70 NY2d 403; People v Rosa, 212 AD2d 376). For this reason, we conclude, based on the existing record, which defendant has not sought to amplify by way of a CPL 440.10 motion, that trial counsel’s advice to defendant to waive a jury did not deprive him of meaningful representation. "Concur — Milohas, J. P., Williams, Tom, Andrias and Saxe, JJ.

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