People v. Yousef

• Decision Date: 07 February 1997
• Citation: 236 A.D.2d 868,654 N.Y.S.2d 82
• Parties: PEOPLE of the State of New York, Respondent, v. Ziad YOUSEF, a/k/a Zyad Kisbech, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 82

654 N.Y.S.2d 82

236 A.D.2d 868

PEOPLE of the State of New York, Respondent, v. Ziad YOUSEF, a/k/a Zyad Kisbech, Appellant.

Supreme Court, Appellate Division Fourth Department.

Feb. 7, 1997.

Anthony Leonardo, Jr., Rochester, for Appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for Respondent.

Before DENMAN, P.J. and GREEN, PINE, BALIO and BOEHM, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him following a bench trial of murder in the second degree and assault in the first degree. We reject the contention of defendant that reversal is required because County Court failed to rule upon his suppression motion before trial. Although, as a general rule, suppression issues should be decided prior to trial (see, CPL 710.40[3] ), the court may deviate from that procedure where, as here, defendant consents thereto (see, People v. Orkabi, 160 A.D.2d 644, 645, 559 N.Y.S.2d 261, lv. denied 76 N.Y.2d 895, 561 N.Y.S.2d 557, 562 N.E.2d 882; see also, People v. Melendez, 141 A.D.2d 860, 530 N.Y.S.2d 202, lv. denied 73 N.Y.2d 788, 536 N.Y.S.2d 748, 533 N.E.2d 678). We also reject the related contention that defendant was deprived of a fair trial because he was not present in chambers when counsel discussed combining the suppression hearing with the trial. The participation of defendant in that discussion was not required because it concerned "only questions of law or procedure" (People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293), not factual matters about which he might have peculiar knowledge (cf., People v. Dokes, 79 N.Y.2d 656, 660, 584 N.Y.S.2d 761, 595 N.E.2d 836).

The record establishes that defendant voluntarily, knowingly and intelligently waived his right to a trial by jury (see, CPL 320.10[2]; People v. Livingston, 184 A.D.2d 529, 530, 584 N.Y.S.2d 175). The court informed defendant of the nature and consequences of waiving his right to a jury trial, and defendant, who executed a written waiver, indicated that he understood his options and wished to proceed with a bench trial. To the extent that defendant contends that his decision to waive his right to a jury trial was based on inadequate advice from counsel, the contention rests on proof outside the record and must therefore be raised by a motion pursuant to CPL 440.10 (see, People v. Tamarez, 213 A.D.2d 261, 262, 624 N.Y.S.2d 388, lv. denied 85 N.Y.2d 981, 629 N.Y.S.2d 741, 653 N.E.2d 637).

We further conclude that defendant was not deprived of effective assistance of counsel at trial. The evidence, the law and the circumstances of this case establish...