People v. Rizzuto

• Decision Date: 27 December 2018
• Docket Number: 7965,Ind. 4339/16
• Citation: 167 A.D.3d 531,90 N.Y.S.3d 166
• Parties: The PEOPLE of the State of New York, Respondent, v. Alfonso RIZZUTO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 531
90 N.Y.S.3d 166

The PEOPLE of the State of New York, Respondent,
v.
Alfonso RIZZUTO, Defendant–Appellant.

7965
Ind. 4339/16

Supreme Court, Appellate Division, First Department, New York.

ENTERED: DECEMBER 27, 2018

90 N.Y.S.3d 167

Marianne Karas, Thornwood, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.

Acosta, P.J., Gische, Mazzarelli, Webber, Oing, JJ.

167 A.D.3d 532

Judgment, Supreme Court, New York County (James M. Burke, J. at pretrial proceedings; Juan M. Merchan, J. at plea and sentencing), rendered April 19, 2017, convicting defendant of burglary in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.

Defendant's absence from a brief colloquy does not warrant reversal. While awaiting the arrival of defendant, who was appearing pro se, the plea court had a conversation with the prosecutor and standby counsel concerning essentially administrative matters. There were no applications by either side, or determinations of any legal or factual issues. Accordingly, nothing occurred that required defendant's presence, including in his capacity as his own attorney (see People v. Hameed, 88 N.Y.2d 232, 240–241, 644 N.Y.S.2d 466, 666 N.E.2d 1339 [1996], cert denied 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625 [1997] ).

90 N.Y.S.3d 168

Defendant's attorney, who became standby counsel after defendant knowingly and voluntary waived his right to counsel, was neither conflicted nor otherwise ineffective at any stage of the proceeding. No conflict was created when the attorney exercised his professional judgment in declining to adopt his client's pro se motions (see e.g. People v. Mangum, 12 A.D.3d 207, 208, 783 N.Y.S.2d 808 [1st Dept. 2004], lv denied 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141 [2005] ), or when he candidly acknowledged that defendant was in danger of being sentenced as a discretionary persistent felon. Accordingly, there was no reason for the courts presiding at either the pretrial or plea proceedings to appoint a new attorney for any purpose.

...