        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

9
KA 12-01362
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     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, of burglary 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 criminal possession
of a weapon in the third degree.

     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 NY2d 247, rearg denied 81 NY2d 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
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                                                         KA 12-01362

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).




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
