People v. Perrone-Maple

Decision Date30 January 2020
Docket Number2019-217 W CR
Parties The PEOPLE of the State of New York, Respondent, v. Marcello PERRONE-MAPLE, Appellant.
CourtNew York Supreme Court — Appellate Term

66 Misc.3d 142 (A)
121 N.Y.S.3d 507 (Table)

The PEOPLE of the State of New York, Respondent,
v.
Marcello PERRONE-MAPLE, Appellant.

2019-217 W CR

Supreme Court, Appellate Term, New York.

Decided January 30, 2020


Christopher R. Daniele, for appellant.

Westchester County District Attorney (Christine DiSalvo and Raffaelina Gianfrancesco of counsel), for respondent.

PRESENT: BRUCE E. TOLBERT, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged in an accusatory instrument with criminal impersonation in the second degree ( Penal Law § 190.25 [3] ). Following a nonjury trial, defendant was convicted as charged. On appeal, defendant contends that his waiver of the right to a jury trial is invalid and that he was deprived of the effective assistance of counsel.

Defendant's contention that his waiver of the right to a jury trial is invalid on the ground that the record does not establish that he signed the written waiver in open court is not preserved for our review (see CPL 470.05 [2] ; People v. Hill , 164 AD3d 1651, 1651 [2018] ; People v. Brown , 81 AD3d 499, 500 [2011] ). In any event, that contention lacks merit. Pursuant to New York Constitution article I, § 2, a jury waiver must be "a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense." Criminal Procedure Law section 320.10 (2) similarly provides, in pertinent part, that "[s]uch waiver must be in writing and must be signed by the defendant in person in open court in the presence of the court, and with the approval of the court." Here, although the transcript of the proceedings does not conclusively establish that defendant signed the written waiver in open court, the waiver form, which was signed by defendant and the Justice Court, expressly states that the waiver was executed "in open court" (see People v. Hill , 164 AD3d at 1651 ; People v. Moran , 87 AD3d 1312, 1312 [2011] ; People v. Brown , 81 AD3d at 500 ), and the court expressly stated at the beginning of the trial that defendant had...

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