PEOPLE v. NEIL (2006)

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered March 18, 1997, convicting defendant, after a jury trial, of three counts each of robbery in the first degree, rape in the first degree and sodomy in the first degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 75 years to life, unanimously affirmed.

 The court did not coerce defendant's waiver of his right to be present at voir dire sidebars by informing him that, if he exercised that right, he would be closely guarded by court officers as a security measure.   This case is indistinguishable from People v. Pondexter, 88 N.Y.2d 363, 373, 376-377, 645 N.Y.S.2d 759, 668 N.E.2d 879 [1996], and defendant's arguments to the contrary are without merit.

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   Defendant's mandatory sentence as a persistent violent felony offender was based entirely on his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).

 Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters outside the record.   On the existing record, to the extent it permits review, we find that defendant received effective assistance under the state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713-714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We have considered and rejected the remaining claims contained in defendant's pro se supplemental brief.