| People v Rockefeller |
| 2011 NY Slip Op 07753 [89 AD3d 1151] |
| November 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JeffreyRockefeller, Appellant. |
—[*1] Richard J. McNally, District Attorney, Troy (Michael W. Shanley of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.),rendered January 13, 2010, upon a verdict convicting defendant of the crimes of stalking in the thirddegree and aggravated harassment in the second degree.
Defendant was charged by indictment with making a terroristic threat, stalking in the third degreeand aggravated harassment in the second degree. The charges stemmed from allegations that defendantthreatened to kill Gary Gordon, an investigator for the Rensselaer County District Attorney's office.Following a jury trial, defendant was acquitted of making a terroristic threat, but convicted of the crimesof stalking in the third degree and aggravated harassment in the second degree. Prior to sentencing,defendant unsuccessfully moved, pro se, pursuant to CPL 330.30 to set aside the verdict as repugnant.County Court thereafter sentenced defendant to one year in prison on each conviction, with thesentences to run concurrently. Defendant appeals.
We are not persuaded by defendant's contention that the verdict is against the weight of [*2]the evidence.[FN*] With respect to stalking in the third degree, defendant argues that there is no evidence that Gordonwas in reasonable fear of harm or injury as a result of defendant's alleged conduct. We disagree. Threeindividuals testified that defendant had approached them and made statements about Gordon that wereof a threatening nature. To one witness, defendant stated that Gordon had ruined his life and that hewanted to beat Gordon to death. Two others testified that defendant made comments to them thatGordon was "a dead man." Gordon testified that, between August 2008 and March 2009, he receivednumerous threatening calls on his work-issued cell phone from defendant, including a call in August2008 during which defendant told Gordon to "watch [his] back" and that Gordon was "af. . .ing dead man." Gordon also testified that, during a call on March 9, 2009, defendanttold him that he was "going to burn down [Gordon's] family's house [in the City of Troy, RensselaerCounty] and kill everybody inside of it." Gordon stated that as a result of defendant's threats, he fearedfor his and his family's safety and took time off from work to protect them until the situation wasresolved. Based on this evidence, the jury could rationally conclude that Gordon's fear was objectivelyreasonable given the evidence of " 'express or implied threat[s] of violence' " against Gordon and hisfamily (People v Clark, 65 AD3d755, 758 [2009], lv denied 13 NY3d 906 [2009], quoting People v Demisse, 24 AD3d 118, 119[2005], lv denied 6 NY3d 833 [2006]).
With respect to the conviction of aggravated harassment in the second degree, defendant contendsthat there is no proof that he made the threatening phone calls to Gordon. However, Gordon testifiedthat he had known defendant for more than 17 years, had previously given defendant's paramour hiscell phone number and recognized defendant's "distinctive voice" on the telephone. Gordon alsotestified that, during one telephone call, defendant discussed events that had involved both Gordon anddefendant and stated his belief that defendant made the threats against him because he had beeninvolved in an investigation and defendant "was not happy with the results." Defendant's paramourtestified in his defense. She acknowledged that Gordon had given her a telephone number because shepreviously had "business" with him, but denied that it was his cell phone number. She also claimed thatshe was with defendant all day on March 8, 2009 and did not see him make any telephone calls.Viewing the evidence in a neutral light, and according deference to the jury's assessment of thewitnesses' credibility, the verdict as to each count is supported by the weight of the evidence (see People v Phelan, 82 AD3d 1279,1281-1282 [2011], lv denied 17 NY3d 799 [2011]).
We are not convinced that County Court erred by permitting a witness to identify herself asdefendant's probation officer and then to testify as to statements defendant made to her regardingGordon. Although defendant claims that allowing the witness to identify herself as his probation officerwas prejudicial because it indicated to the jury that he had a criminal record, the record reflects thatCounty Court appropriately weighed the probative value of that evidence against the potentialprejudicial effect before permitting the witness to testify (see People v Asai, 66 AD3d 1138, 1141 [2009]). Further, the noticerequired by CPL 710.30 is required only when [*3]the "[P]eople intendto offer at a trial . . . evidence of a statement made by a defendant to a public servant,which statement if involuntarily made would render the evidence thereof suppressible" (CPL 710.30[1]). Here, defendant reported to the probation officer regarding a previous conviction and there is noindication that the probation officer knew that charges had been filed against defendant for his threatsagainst Gordon. Defendant's statements regarding Gordon were not elicited by the probation officerbut, rather, were spontaneously offered by defendant. Inasmuch as routine meetings with a probationofficer are not considered custodial, and defendant had no obligation to report potential future criminalactivity (see generally People v Edwards, 154 AD2d 150 [1990]), there was no question as tothe voluntariness of defendant's statements and, thus, CPL 710.30 notice was not required (seePeople v Greer, 42 NY2d 170, 178 [1977]; People v Early, 85 AD2d 752, 752 [1981]).
Finally, neither defendant's contention that the verdict is repugnant nor his claim of prosecutorialmisconduct was preserved for our review.
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: To the extent that defendant alsochallenges the legal sufficiency of the evidence as to the conviction of stalking in the third degree, suchclaim was not properly preserved at trial. However, as part of our weight of the evidence review, weevaluate "the sufficiency of the evidence as to the elements of the charged crimes" (People v Andrews, 78 AD3d 1229,1230 [2010], lv denied 16 NY3d 827 [2011]).