        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1295
KA 12-01692
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ADRIAN DIXON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL D. SMITH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered January 12, 2012. The judgment convicted
defendant, after a nonjury trial, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). Contrary to defendant’s
contention, we conclude that the evidence, viewed in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), is
legally sufficient to support the conviction despite the fact that no
witness observed defendant in possession of the weapon (see People v
Mateo, 13 AD3d 987, 988, lv denied 5 NY3d 883). Viewing the evidence
in the light of the elements of the crime in this nonjury trial (see
People v Danielson, 9 NY3d 342, 349), we further conclude that the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).

     Defendant failed to preserve for our review his 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 (see People v Moran, 87 AD3d 1312, 1312, lv denied 19 NY3d
976; People v Brunson, 307 AD2d 323, 324, lv denied 100 NY2d 641). In
any event, that contention lacks merit inasmuch as the record of the
waiver colloquy, which took place in open court, establishes that
defendant discussed the waiver with defense counsel, stated that he
understood the nature and consequences of the waiver, and acknowledged
that he had signed the waiver form (see People v Badden, 13 AD3d 463,
463, lv denied 4 NY3d 796; Brunson, 307 AD2d at 324). Defendant’s
                                 -2-                          1295
                                                         KA 12-01692

further contention that his waiver of the right to a jury trial is
invalid on the ground that the written waiver bears an incorrect date
is also unpreserved for our review (see CPL 470.05 [2]) and, in any
event, does not warrant reversal. This Court “must determine an
appeal without regard to technical errors or defects which do not
affect the substantial rights of the parties . . . , and the error
here exemplifies such a technicality” (People v Cepeda, 29 AD3d 491,
492, lv denied 7 NY3d 810 [internal quotation marks omitted]).

     Finally, we reject defendant’s contention that County Court erred
in failing to rule on that part of his pretrial motion seeking
dismissal of the indictment on the ground that the grand jury
proceedings were defective. The record establishes that the court in
fact denied that part of defendant’s motion (cf. People v Jones, 103
AD3d 1215, 1217, lv dismissed 21 NY3d 944; People v Spratley, 96 AD3d
1420, 1421, following remittal 103 AD3d 1211, lv denied 21 NY3d 1020).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
