People v. Cohens

• Decision Date: 18 February 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph A. COHENS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 492
81 A.D.3d 1442

The PEOPLE of the State of New York, Respondent,
v.
Joseph A. COHENS, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 18, 2011.

917 N.Y.S.2d 492

Charles A. Marangola, Moravia, for Defendant-Appellant.

Jon E. Budelmann, District Attorney, Auburn (Christopher W. Schlecht of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

81 A.D.3d 1443

Defendant appeals from a judgment convicting him, upon a nonjury verdict, of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ). Defendant failed to preserve for our review

917 N.Y.S.2d 493

his contention that County Court violated his right to a jury trial by offering to impose the minimum lawful sentence if he agreed to waive the right to a jury trial and instead to proceed with a bench trial ( see People v. Sanchez, 306 A.D.2d 86, 759 N.Y.S.2d 862, lv. denied 1 N.Y.3d 580, 775 N.Y.S.2d 796, 807 N.E.2d 909; see also People v. Dixon, 50 A.D.3d 1519, 856 N.Y.S.2d 383, lv. denied 10 N.Y.3d 958, 863 N.Y.S.2d 142, 893 N.E.2d 448). In any event, in light of defendant's extensive experience with the court system and the fact that he was represented by counsel, we conclude that defendant's right to a jury trial was not violated by the conditional promise of the court to impose the minimum sentence ( see People v. Daniels, 209 A.D.2d 340, 341, 619 N.Y.S.2d 8; cf. People v. Nicholson, 35 A.D.3d 886, 888-889, 829 N.Y.S.2d 548; see generally Sanchez, 306 A.D.2d at 86, 759 N.Y.S.2d 862).

Defendant further contends that the verdict is inconsistent or repugnant because the court dismissed the charge of menacing in the second degree (Penal Law § 120.14[1] ) but found him guilty of criminal possession of a weapon in the third degree based on his possession of a knife. We reject that contention. The record reflects that defendant was charged with two counts of criminal possession of a weapon, based on his possession of a knife and a two-by-four piece of wood, respectively, and the court acquitted defendant of the count based on his possession of the piece of wood. According to the People's bill of particulars, however, the menacing charge was based on defendant's use of "both" the knife and the piece of wood. Thus, in dismissing the menacing count, the court apparently found that the People did not prove that defendant intentionally placed or attempted to place the victim in...