People v. Rizzo

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.

We perceive no basis for reducing the sentence.

Concur— Renwick, J.P., Moskowitz, Kapnick, Kahn and Gesmer, JJ.