People v. McDaniel

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant contends that his waiver of trial by jury is invalid because the waiver was not executed in "open court” as required by NY Constitution, article I, §2 and CPL 320.10 (2). The validity of that contention cannot be determined on this record and must be established, "if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10” (People v Johnson, 51 NY2d 986, 988; see also, People v Magnano, 158 AD2d 979).

The court erred in ordering that the…