People v. Phelps

Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered October 3, 2001. The judgment convicted defendant, upon a nonjury verdict, of criminal contempt in the second degree and criminal mischief in the fourth degree. 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 nonjury trial of criminal mischief in the fourth degree (Penal Law § 145.00 [1]) and criminal contempt in the second [864] degree (§ 215.50 [3]), defendant contends that the conviction of criminal mischief is not supported by legally sufficient evidence because no one saw him intentionally damage the complainant’s property. Defendant failed to move to dismiss that count of the indictment on that ground and thus failed to preserve Ms contention for our review (see People v Gray, 86 NY2d 10, 19 [1995]). We also reject his contention that he was denied effective assistance of counsel based on defense counsel’s failure to make that particular motion. Although the evidence is in part circumstantial, we conclude that it is legally sufficient to support the conviction of criminal mischief (see People v Bleakley, 69 NY2d 490, 495 [1987]), and defendant therefore has failed to show that the motion to dismiss, if made, would have been successful (see e.g. People v Coleman, 305 AD2d 1031, 1032 [2003], lv denied 100 NY2d 579 [2003]; People v Carter, 281 AD2d 919 [2001], lv denied 96 NY2d 860 [2001]; People v Rogers, 277 AD2d 876, 877 [2000], lv denied 96 NY2d 834 [2001]). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Baldi, 54 NY2d 137, 147 [1981]). Present—Green, J.P, Pine, Wisner, Gorski and Lawton, JJ.