| People v Phelan |
| 2011 NY Slip Op 01538 [82 AD3d 1279] |
| March 3, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KennethPhelan, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Peters, J.P. Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.),rendered March 4, 2009, upon a verdict convicting defendant of the crimes of criminal contemptin the first degree (two counts), aggravated harassment in the second degree and stalking in thethird degree, and (2) by permission, from an order of said court, entered November 20, 2009,which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
As a result of defendant's interactions and communications with the victim between Apriland June 2008, a temporary order of protection was issued on July 1, 2008 directing thatdefendant stay away from and avoid any contact with the victim. Later that day, the victimreceived two e-mails allegedly sent by defendant—one stating, "You are dead [b]**ch!!$10,000 reward for your death," and the other stating, among other things, "We will kill you."The victim also discovered that defendant had posted on "Craigslist," a public Internet Web site,her name, address, license plate number, place of employment, and make and model of her car,and he identified her as an illegal immigrant living in the City of Albany who was using a stolenSocial Security number and date of birth.
Subsequently, in response to defendant's report that the victim was an illegal immigrant,[*2]a State Police investigator conducted a background check ofthe victim and learned that she was a legal resident of the United States. He also learned of theorder of protection against defendant in favor of the victim. After speaking with the victim andobtaining a supporting deposition, the investigator obtained a search warrant for defendant'sresidence. Upon execution of the warrant, the police discovered, among other things, a fileentitled "Secret I Spy Covert File" under defendant's mattress that contained information aboutthe victim, as well as a rolodex with the e-mail address and password to the e-mail account fromwhich the two threatening e-mails were sent to the victim.
Defendant was thereafter arrested and indicted on two counts of criminal contempt in thefirst degree, aggravated harassment in the second degree and stalking in the third degree.Following a jury trial, he was convicted as charged and sentenced to an aggregate prison term of2 to 4 years. County Court denied defendant's subsequent CPL 440.10 motion without a hearing.He appeals from the judgment of conviction and, by permission, from the order denying his CPLarticle 440 motion.
We are unpersuaded by defendant's challenge to the verdict as contrary to the weight of theevidence.[FN*]With respect to the criminal contempt counts, defendant argues that there is no evidence that hesent the two threatening e-mails or was served with or aware of the conditions of the order ofprotection. We disagree. Evidence was presented that defendant was present in court on July 1,2008 when the order of protection was issued and his signature appears on the order indicatingthat he had been served with it and advised of its contents. Furthermore, although the police wereunable to locate the threatening e-mails upon a search of defendant's computer, defendant'spossession of the rolodex containing the e-mail address and password for the account from whichthe e-mails were sent was sufficient to establish that they originated from him.
As to the charges of aggravated harassment and stalking, the victim testified that, prior to theissuance of the order of protection, she learned that defendant came to her workplace looking forher. Although she became frightened and informed defendant never to contact her again,defendant went to her church four days later. The victim explained that she hid in a back room ofthe church in fear after seeing defendant, who was thereafter asked by members of the church notto return. According to the victim, defendant returned to her church two weeks later andconfronted her in the parking lot, at which time he yelled at her, made a fist and told her to "goback to your own country." The victim returned to her car after she attended church to find [*3]that it had been scratched from front to back. She testified furtherthat defendant thereafter sent her an e-mail threatening that, unless she sincerely apologized tohim, he would seek to have her deported as an illegal immigrant. Contrary to defendant'scontention, the testimony of the People's witnesses was neither inconsistent nor unworthy ofbelief, and we find no reason in the record to disturb the jury's determination, which credited thevictim's uncontradicted account of the events that transpired (see People v Soler, 52 AD3d 938, 940 [2008], lv denied 11NY3d 741 [2008]; People vMcCowan, 45 AD3d 888, 889-890 [2007], lv denied 9 NY3d 1007 [2007]; People v Gorham, 17 AD3d 858,860 [2005]). Evaluating the evidence in a neutral light and according deference to the jury'scredibility assessments, we find that the verdict on each count is supported by the weight of thecredible evidence (see People vClark, 65 AD3d 755, 759 [2009], lv denied 13 NY3d 906 [2009]; People vMcCowan, 45 AD3d at 889-890).
Nor do we discern any error in County Court's Sandoval ruling. "The determinationas to which prior convictions . . . can be inquired about and the extent of suchinquiry rests primarily within the discretion of the trial court" (People v Caston, 60 AD3d 1147,1148 [2009] [internal quotation marks and citations omitted]; accord People v Wilson, 78 AD3d 1213, 1215 [2010]). Aftercareful consideration, County Court limited the People's inquiry regarding defendant's attemptedassault conviction to whether he was convicted of a felony, and permitted the People tocross-examine defendant about his convictions for assault with a deadly weapon and forgery. Weagree with County Court's determination that these convictions reflected defendant's willingnessto place his own interests ahead of those of society and were relevant to his veracity andcredibility (see People v Mitchell,57 AD3d 1308, 1311 [2008]; People v Quiller, 298 AD2d 712, 713 [2002], lvdenied 99 NY2d 618 [2003]; People v Williams, 256 AD2d 661, 662 [1998], lvdenied 93 NY2d 981 [1999]). Thus, we conclude that County Court "appropriately exercisedits discretion in balancing the probative value of this evidence against the risk of unfair prejudiceto defendant" (People v Evans, 17AD3d 861, 863 [2005], lv denied 5 NY3d 828 [2005]; see People v Mitchell,57 AD3d at 1311; People v Foster,52 AD3d 957, 960-961 [2008], lv denied 11 NY3d 788 [2008]; People vHogencamp, 295 AD2d 643, 644 [2002], lv denied 98 NY2d 697 [2002]).
Similarly unpersuasive is defendant's claim that he was deprived of the effective assistance ofcounsel. Although defendant deems counsel ineffective for withdrawing his suppression motions,our review of the evidence adduced at the Huntley and Wade hearing fails toreveal any likelihood of success of a challenge to the admissibility of his statements to police orthe evidence seized from his residence pursuant to the search warrant (see People v VanGuilder, 282 AD2d 773, 774 [2001], lv denied 96 NY2d 836 [2001]; see also People v Baez, 52 AD3d840 [2008], lv denied 11 NY3d 785 [2008]). Furthermore, as the record reveals nocolorable factual or legal basis for suppression as the product of an unlawful arrest, counsel wasnot remiss in failing to advance this argument (see generally People v Barfield, 21 AD3d 1396, 1396 [2005], lvdenied 5 NY3d 881 [2005]; People v Lee, 205 AD2d 708, 709 [1994], lvdenied 84 NY2d 828 [1994]). Rather, counsel made appropriate pretrial motions, engaged inmeaningful cross-examination of the People's witnesses, made several appropriate objections andpresented a consistent, viable defense throughout the trial. Under the totality of thecircumstances, defendant received meaningful representation (see People v Baldi, 54NY2d 137, 146-147 [1981]).
Finally, considering defendant's criminal history, his disregard of the order of protection andhis disturbing pattern of conduct towards the victim, we find no extraordinary circumstances orabuse of discretion by County Court warranting modification of his sentence (see People v[*4]Clark, 65 AD3d at 759; People v Soler, 52 AD3dat 941; People v White, 23 AD3d764, 765 [2005]). Defendant's remaining contentions have been reviewed and found to bewithout merit.
Kavanagh, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote *: To the extent that defendant alsoclaims that his convictions are not supported by legally sufficient evidence, his general motion todismiss at trial failed to preserve this issue for appellate review (see People v Finger, 95NY2d 894, 895 [2000]; People vAdamek, 69 AD3d 979, 980 [2010], lv denied 14 NY3d 797 [2010]; People v Mann, 63 AD3d 1372,1373 [2009], lv denied 13 NY3d 861 [2009]). We note that as part of our weight of theevidence review, we evaluate all the evidence presented as to each element of the crimes charged(see People v Paige, 77 AD3d1193, 1195 [2010], lv granted 15 NY3d 925 [2010]; People v Brisson, 68 AD3d 1544,1546 [2009], lv denied 14 NY3d 798 [2010]).