Majority
p. 986The People of the State of New York, Respondent, v Handy Johnson, Appellant. Argued October 17, 1980; decided November 20, 1980
p. 987
APPEARANCES OF COUNSEL
Bennett M. Lincoff and William E. Hellerstein for appellant.
Mario Merola, District Attorney (Kenneth R. Larywon and Timothy J. McGinn of counsel), for respondent.
OPINION OF THE COURT
Memorandum.
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
p. 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.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.
Order affirmed.