| People v Rizzo |
| 2016 NY Slip Op 07586 |
| Decided on November 15, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 15, 2016
Renwick, J.P., Moskowitz, Kapnick, Kahn, Gesmer, JJ.
2185 5073/10
v
Raymond Rizzo, Defendant-Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph Nursey of counsel), and Debevoise & Plimpton LLP, New York (Elizabeth Nielsen of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered August 15, 2013, as amended September 18, 2013, convicting defendant, after a jury trial, of murder in the second degree, burglary in the first degree (three counts), robbery in the first degree (three counts), robbery in the second degree (three counts), criminal possession of a weapon in the second degree and assault in the second degree, and sentencing him to an aggregate term of 32 years to life, unanimously affirmed.
Defendant validly waived his right under People v Antommarchi (80 NY2d 247 [1992]) to be present at bias-related bench conferences with prospective jurors (see People v Velasquez, 1 NY3d 44 [2003]). The court indicated that, at an off-the-record bench conference, defense counsel had expressed his client's intention to waive his Antommarchi rights, whereupon defense counsel acknowledged that fact in open court by saying, "Yes." While the "better practice" would have been to make a fuller record, "nothing in the record calls into question the effectiveness of defendant's waiver as announced by counsel," and defendant has "failed to rebut the presumption of regularity that the waiver was neither offered by defense counsel nor accepted by the trial court without first ascertaining that defendant voluntarily, knowingly and intelligently waived his right to be present at sidebar conferences" (id. at 50). Defendant's attempt to distinguish Velasquez is unavailing.
Defendant's challenges to the prosecutor's summation are unpreserved and we decline to review them in the interest of justice. As an alternative holding, we find that the comments at issue, while better left unsaid, were generally responsive to defense arguments and fell within the broad leeway afforded prosecutors on summation (see People v Galloway, 54 NY2d 396 [1981]), and that, in any event, any improprieties were harmless in light of the overwhelming evidence of guilt (see People v Crimmins, 36 NY2d 230 [1975]). We have considered and rejected defendant's ineffective assistance of counsel claim relating to the lack of objection (see People v [*2]Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]). Accordingly, we do not find that any lack of preservation may be excused on the ground of ineffective assistance.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 15, 2016
DEPUTY CLERK