Opinion
02-05-2016
The PEOPLE of the State of New York, Respondent, v. Richard J. TORTORICE, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
MEMORANDUM:Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, three counts of burglary in the first degree (Penal Law § 140.30[2]–[4] ). Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct inasmuch as he failed to object to any of the allegedly improper conduct (see People v. Bynum, 125 A.D.3d 1278, 1278, 1 N.Y.S.3d 724, lv. denied 26 N.Y.3d 927, 17 N.Y.S.3d 89, 38 N.E.3d 835 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We reject defendant's contention that he was denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances of the case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ). Contrary to defendant's further contention, he implicitly waived his rights under People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393 during jury selection when, "after hearing the trial judge say that he [had an absolute right to come up and hear everything], he chose not to do so" (People v. Flinn, 22 N.Y.3d 599, 601, 984 N.Y.S.2d 283, 7 N.E.3d 496, rearg. denied 23 N.Y.3d 940, 987 N.Y.S.2d 592, 10 N.E.3d 1147 ; see People v. Williams, 15 N.Y.3d 739, 740, 907 N.Y.S.2d 740, 934 N.E.2d 309 ). Defendant's related contention that Supreme Court's instruction was too narrow because it was not clear that he could attend all "backroom" conferences with potential jurors concerning possible bias is belied by the record, inasmuch as the court informed defendant that he "was free to attend ... conferences if he wanted to do so" (Flinn, 22 N.Y.3d at 602, 984 N.Y.S.2d 283, 7 N.E.3d 496 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
SMITH, J.P., PERADOTTO, LINDLEY, DeJOSEPH, and SCUDDER, JJ., concur.