People v. Burnett

Decision Date29 January 1988
Citation524 N.Y.S.2d 938,136 A.D.2d 888
PartiesPEOPLE of the State of New York, Respondent, v. Hugh BURNETT, Appellant.
CourtNew York Supreme Court — Appellate Division

Richard J. Steiner, Buffalo, for appellant.

Richard J. Arcara by Jo Faber, Buffalo, for respondent.

Before DILLON, P.J., and DENMAN, BOOMER, PINE and LAWTON, JJ.

MEMORANDUM:

On appeal from a judgment convicting him, after a bench trial, of first degree assault and third degree criminal possession of a weapon, defendant's sole contention is that the court erred in accepting his written jury waiver without inquiring whether defendant voluntarily, knowingly, and intelligently was waiving his right to a jury trial. We hold that, in the circumstances of this case, a written waiver is sufficient and is not invalidated by the court's failure to inquire ( see, People v. Dominy, 116 A.D.2d 851, 498 N.Y.S.2d 268, lv. denied 67 N.Y.2d 942, 502 N.Y.S.2d 1034, 494 N.E.2d 119; cf., People v. Basora, 111 A.D.2d 248, 489 N.Y.S.2d 91). Defendant was represented by experienced counsel who specifically acknowledged, in defendant's presence, that defendant was waiving his right to a jury trial. Defendant then signed a written waiver in open court. The waiver recites that defendant was waiving his right to a jury after consultation with his attorney and "with full understanding of (his) rights and privileges." Defendant, who is a 41-year-old businessman, can be presumed to have understood the plain import of his jury waiver. Nothing in the record would have alerted the court to the possibility that defendant was "not fully aware of the consequences of" his jury waiver (CPL 320.10 see, People v. Dominy, supra). Finally, defendant failed to rescind his jury waiver or protest his being tried by the court at any point in the proceeding.

Judgment unanimously affirmed.

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8 cases
  • People v. Tamarez
    • United States
    • New York Supreme Court — Appellate Division
    • March 21, 1995
    ...waived his right to a trial by jury (CPL 320.10[2]; People v. Livingston, 184 A.D.2d 529, 584 N.Y.S.2d 175; People v. Burnett, 136 A.D.2d 888, 524 N.Y.S.2d 938, lv. denied 70 N.Y.2d 1004, 526 N.Y.S.2d 939, 521 N.E.2d Viewing the evidence in the light most favorable to the People (People v. ......
  • People v. Colucci
    • United States
    • New York Supreme Court — Appellate Division
    • November 19, 1993
    ...that he did not knowingly and intelligently waive his right to a jury trial. That contention lacks merit (see, People v. Burnett, 136 A.D.2d 888, 524 N.Y.S.2d 938, lv. denied 70 N.Y.2d 1004, 526 N.Y.S.2d 939, 521 N.E.2d 1082; see also, People v. Simmons, 182 A.D.2d 1018, 583 N.Y.S.2d 46; Pe......
  • People v. Driver
    • United States
    • New York Supreme Court
    • December 16, 2021
    ... ... court to the possibility that defendant was not fully aware ... of the consequences of waiving a jury trial, no inquiry into ... defendant's awareness was necessary (see People v ... Medina, 202 A.D.2d 256, 257 [1994]; People v ... Burnett, 136 A.D.2d 888 [1988]; People v ... Dominy, 116 A.D.2d 851, 852 [1986]) ... Defendant's ... contention, that he was deprived of the effective assistance ... of counsel as it related to the waiver of a jury trial, is ... based, in part, on matter appearing on ... ...
  • People v. Franklin
    • United States
    • New York Supreme Court — Appellate Division
    • April 17, 1989
    ...either to be unpreserved for appellate review or without merit (People v. Sierra, 143 A.D.2d 1065, 533 N.Y.S.2d 751; People v. Burnett, 136 A.D.2d 888, 524 N.Y.S.2d 938; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d ...
  • Request a trial to view additional results

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