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...
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