PEOPLE v. BADDEN (2004)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lewis, J.), rendered March 12, 2001, convicting him of criminal sale of a controlled substance in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his waiver of his right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05[2];  People v. Magnano, 77 N.Y.2d 941, 570 N.Y.S.2d 484, 573 N.E.2d 572, cert. denied 502 U.S. 864, 112 S.Ct. 189, 116 L.Ed.2d 150;  People v. Brunson, 307 A.D.2d 323, 762 N.Y.S.2d 509).   In any event, the defendant's contention is without merit.   The record is clear that the defendant engaged in a lengthy discussion with his attorney about the matter during a 10-day adjournment.   In open court, the trial judge, with the written, executed waiver form in hand, asked the defendant if the defendant intended to waive his right to a jury trial, and the defendant replied “yes.”   Although the waiver itself may not have been signed in open court, the entire colloquy about the waiver took place in open court, thus rendering the waiver valid (see People v. Brunson, supra;  People v. Perez, 213 A.D.2d 351, 624 N.Y.S.2d 413;  cf. People v. Davidson, 136 A.D.2d 66, 525 N.Y.S.2d 855).

The defendant's remaining contention is without merit.