| People v Hildreth |
| 2011 NY Slip Op 05750 [86 AD3d 917] |
| July 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v R. MichaelHildreth, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered August 15, 2007. The judgment convicted defendant, upon a nonjury verdict, of officialmisconduct and eavesdropping.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict ofofficial misconduct (Penal Law § 195.00 [1]) and eavesdropping (§ 250.05).Defendant failed to preserve for our review his contention that the conviction is not supported bylegally sufficient evidence (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, thatcontention is without merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).In support of his challenge to the legal sufficiency of the evidence supporting the eavesdroppingconviction, defendant contends that there was a "complete absence of evidence that he'intercepted' or 'accessed' an electronic communication." We reject that contention. "A person isguilty of eavesdropping when he [or she] unlawfully engages in . . . intercepting oraccessing of an electronic communication" (§ 250.05), which is defined as the "intentionalacquiring, receiving, collecting, overhearing, or recording of an electronic communication,without the consent of the sender or intended receiver thereof, by means of any instrument,device or equipment" (§ 250.00 [6]). The fact that none of the witnesses testified thatinformation was recorded by the program installed by defendant on the victim's computer doesnot render the evidence supporting the eavesdropping conviction legally insufficient. Indeed,there was ample circumstantial evidence, including the documentary evidence from the companythat created the program, establishing that it was installed on the victim's computer, that it wasconfigured to record certain types of communications and send a report regarding them to ane-mail address and that it attempted to send such a report. "It is well settled that, even incircumstantial evidence cases, the standard for appellate review of legal sufficiency issues is'whether any valid line of reasoning and permissible inferences could lead a rational person to theconclusion reached by the fact finder on the basis of the evidence at trial, viewed in the lightmost favorable to the People' " (People v Hines, 97 NY2d 56, 62 [2001], reargdenied 97 NY2d 678 [2001]). Here, we conclude that the evidence at trial could lead arational person to conclude that the program installed by defendant recorded information that itgained from the victim's electronic communication.[*2]
Viewing the evidence in light of the elements of thecrimes in this nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict isagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495). We furtherconclude that defendant was not denied effective assistance of counsel based on defensecounsel's failure to make an omnibus motion or to request a bill of particulars (see People v Brink, 30 AD3d1014, 1015 [2006], lv denied 7 NY3d 810 [2006]). In addition, "defense counsel'sfailure to make a specific motion for a trial order of dismissal at the close of the People's case didnot constitute ineffective assistance of counsel, inasmuch as any such motion would have had nochance of success" (People vHorton, 79 AD3d 1614, 1616 [2010], lv denied 16 NY3d 859 [2011]; see generally People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Viewing the evidence, the lawand the circumstances of this case, in totality and as of the time of the representation, weconclude that defendant received meaningful representation (see generally People vBaldi, 54 NY2d 137, 147 [1981]). Present—Smith, J.P., Fahey, Carni, Lindley andGorski, JJ.