Opinion
February 2, 1990
Appeal from the Allegany County Court, Feeman, J.
Present — Dillon, P.J., Callahan, Boomer, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: The waiver of jury trial signed by defendant and his attorney, and approved by the Judge, states that it was executed "in open court before the undersigned Judge". No assertion by defendant to the contrary is found in the record. Thus, defendant's claim of error with respect to the procedure followed in approving the waiver is not preserved for review (see, CPL 470.05; see, People v Johnson, 51 N.Y.2d 986; People v Sierra, 143 A.D.2d 1065, lv denied 73 N.Y.2d 926). Moreover, there is nothing in the record which would have alerted the court to the possibility that defendant was not fully aware of the consequences of the waiver (see, CPL 320.10; People v Burnett, 136 A.D.2d 888, lv denied 70 N.Y.2d 1004). Any claim by defendant "that his participation in the waiver was not knowing and voluntary implicates his relationship with his trial attorney and is to be proved, if at all, by facts outside the trial record in a proceeding maintainable under CPL 440.10" (People v Johnson, supra, at 988; see also, People v Davidson, 136 A.D.2d 66).