People v. Johnson

51 N.Y.2d 986 (1980)

The People of the State of New York, Respondent, v. Handy Johnson, Appellant.

Court of Appeals of the State of New York.

Argued October 17, 1980.

Decided November 20, 1980.

Bennett M. Lincoff and William E. Hellerstein for appellant.

Mario Merola, District Attorney (Kenneth R. Larywon and Timothy J. McGinn of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

*987MEMORANDUM.

The order of the Appellate Division should be affirmed.

The issue raised with respect to the procedure followed in approving the appellant's waiver of jury trial was not preserved for review (CPL 470.05, subd 2). Moreover, quite apart from the lack of preservation, there is nothing on this record to afford a basis for determination of the question now raised for the first time. As the People correctly *988 argue, the appellant's present claim 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. That course was not pursued.

Order affirmed.