Opinion
KA 01-00914
July 3, 2003.
Appeal from a judgment of Supreme Court, Monroe County (VanStrydonck, J.), entered February 27, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree (two counts).
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (ELIZABETH CLARKE OF COUNSEL), FOR DEFENDANT-APPELLANT.
SHARROWL DAVIS, DEFENDANT-APPELLANT PRO SE.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (ARTHUR G. WEINSTEIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him, following a jury trial, of two counts of murder in the second degree (Penal Law 125.25, [3]) and two counts of robbery in the first degree (160.15 [4]) involving two victims, defendant contends that prosecutorial misconduct deprived him of a fair trial. Defendant concedes, however, that his challenges to the prosecutor's statements during summation are not preserved for our review ( see CPL 470.05), and we decline to exercise our power to review those challenges as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Defendant also contends that the prosecutor engaged in misconduct by obtaining an ex parte protective order ( see 240.50 [1]); however, neither the order nor the supporting papers are contained in the record on appeal. Thus, defendant has failed to meet his burden of providing this Court with an adequate record to review that contention ( see People v. Roman, 217 A.D.2d 473, 474, affd 88 N.Y.2d 18, rearg denied 88 N.Y.2d 920; People v. Dewitt, 295 A.D.2d 937, 938, lv denied 98 N.Y.2d 709; People v. Degondea, 256 A.D.2d 39, 41, lv denied 95 N.Y.2d 834).
Defendant knowingly, voluntarily and intelligently waived his right to be present at sidebar conferences where challenges to prospective jurors were discussed ( see People v. Spirles, 294 A.D.2d 810, lv denied 99 N.Y.2d 540; People v. Steenwerth, 279 A.D.2d 641, 642, lv denied 96 N.Y.2d 807) and, in any event, he was present in court during voir dire and when the challenges to the jury were "effectuated" ( People v. Mieles, 254 A.D.2d 436, 436, lv denied 92 N.Y.2d 1051; see People v. Velasco, 77 N.Y.2d 469, 473; People v. Hizbullah, 273 A.D.2d 409, lv denied 95 N.Y.2d 866; People v. Dockery, 253 A.D.2d 889, lv denied 92 N.Y.2d 1031). Therefore, defendant was not denied his right to be present at a material stage of the proceedings.
Defendant's contention that the conviction is not supported by legally sufficient evidence is not preserved for our review ( see People v. Gray, 86 N.Y.2d 10, 19) and, in any event, is without merit ( see generally People v. Bleakley, 69 N.Y.2d 490, 495). "Defendant's claim that his trial counsel's advice not to testify constituted ineffective assistance of counsel implicates strategic discussions between defendant and counsel that are dehors the record" and thus is not reviewable on direct appeal ( People v. Sanders, 289 A.D.2d 101, 101, lv denied 97 N.Y.2d 760; see People v. Pozo, 285 A.D.2d 520, lv denied 99 N.Y.2d 538). With respect to defendant's other claims of ineffective assistance, we conclude that they lack merit. The evidence, the law and the circumstances of this case, viewed in totality and as of the time of the representation, establish that defendant received meaningful representation ( see generally People v. Baldi, 54 N.Y.2d 137, 147).