PEOPLE v. DONES (1998)

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 second felony offender, to concurrent prison terms of 11/212 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 N.Y.2d 403, 521 N.Y.S.2d 663, 516 N.E.2d 200;  People v. Rosa, 212 A.D.2d 376, 622 N.Y.S.2d 261).  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.

MEMORANDUM DECISION.