Opinion
KA 01-02196.
February 11, 2004.
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.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., PINE, WISNER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
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) and criminal contempt in the second 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 his contention for our review ( see People v. Gray, 86 N.Y.2d 10, 19). 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 N.Y.2d 490, 495), 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 A.D.2d 1031, 1032, lv denied 100 N.Y.2d 579; People v. Carter, 281 A.D.2d 919, lv denied 96 N.Y.2d 860; People v. Rogers, 277 A.D.2d 876, 877, lv denied 96 N.Y.2d 834). 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 N.Y.2d 1021, 1022; People v. Baldi, 54 N.Y.2d 137, 147).