| People v Tortorice |
| 2016 NY Slip Op 00790 [136 AD3d 1284] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRichard J. Tortorice, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.),rendered April 20, 2012. The judgment convicted defendant, upon a jury verdict, ofburglary in the first degree (three counts), robbery in the first degree (two counts),criminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, three counts of burglary in the first degree (Penal Law§ 140.30 [2]-[4]). Defendant failed to preserve for our review hiscontention that he was deprived of a fair trial by prosecutorial misconduct inasmuch ashe failed to object to any of the allegedly improper conduct (see People v Bynum, 125AD3d 1278, 1278 [2015], lv denied 26 NY3d 927 [2015]), and we declineto exercise our power to review that contention as a matter of discretion in the interest ofjustice (see CPL 470.15 [6] [a]). We reject defendant's contention that he wasdenied effective assistance of counsel. Viewing the evidence, the law, and thecircumstances of the case, in totality and as of the time of the representation, we concludethat defense counsel provided meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Contrary to defendant's further contention, heimplicitly waived his rights under People v Antommarchi (80 NY2d 247 [1992],rearg denied 81 NY2d 759 [1992]) during jury selection when, "after hearing thetrial judge say that he [had an absolute right to come up and hear everything], he chosenot to do so" (People vFlinn, 22 NY3d 599, 601 [2014], rearg denied 23 NY3d 940 [2014]; see People v Williams, 15NY3d 739, 740 [2010]). Defendant's related contention that Supreme Court'sinstruction 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 NY3d at 602).Present—Smith, J.P., Peradotto, Lindley, DeJoseph and Scudder, JJ.