THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RICHARD TORTORICE DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

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 AD3d 1278, 1278, lv. denied 26 NY3d 927), 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 NY3d 137, 147).  Contrary to defendant's further contention, he implicitly waived his rights under People v. Antommarchi (80 N.Y.2d 247, rearg. denied 81 N.Y.2d 759) 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 NY3d 599, 601, rearg. denied 23 NY3d 940;  see People v. Williams, 15 NY3d 739, 740).  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 NY3d at 602).

Frances E. Cafarell

Clerk of the Court