         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
726
KA 11-00081
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

R. MICHAEL HILDRETH, DEFENDANT-APPELLANT.


THE PARRINELLO LAW FIRM, LLP, ROCHESTER (BRUCE F. FREEMAN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     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 official misconduct
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 of official 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 by legally
sufficient evidence (see People v Gray, 86 NY2d 10, 19). In any
event, that contention is without merit (see generally People v
Bleakley, 69 NY2d 490, 495). In support of his challenge to the legal
sufficiency of the evidence supporting the eavesdropping conviction,
defendant contends that there was a “complete absence of evidence that
he ‘intercepted’ or ‘accessed’ an electronic communication.” We
reject that contention. “A person is guilty of eavesdropping when he
[or she] unlawfully engages in . . . intercepting or accessing of an
electronic communication” (§ 250.05), which is defined as the
“intentional acquiring, 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 that information was recorded by the program
installed by defendant on the victim’s computer does not render the
evidence supporting the eavesdropping conviction legally insufficient.
Indeed, there was ample circumstantial evidence, including the
documentary evidence from the company that created the program,
establishing that it was installed on the victim’s computer, that it
was configured to record certain types of communications and send a
                                 -2-                           726
                                                         KA 11-00081

report regarding them to an e-mail address and that it attempted to
send such a report. “It is well settled that, even in circumstantial
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 the conclusion reached by
the fact finder on the basis of the evidence at trial, viewed in the
light most favorable to the People’ ” (People v Hines, 97 NY2d 56, 62,
rearg denied 97 NY2d 678). Here, we conclude that the evidence at
trial could lead a rational person to conclude that the program
installed by defendant recorded information that it gained from the
victim’s electronic communication.

     Viewing the evidence in light of the elements of the crimes in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence (see generally Bleakley, 69 NY2d at 495). We further
conclude that defendant was not denied effective assistance of counsel
based on defense counsel’s failure to make an omnibus motion or to
request a bill of particulars (see People v Brink, 30 AD3d 1014, 1015,
lv denied 7 NY3d 810). In addition, “defense counsel’s failure to
make a specific motion for a trial order of dismissal at the close of
the People’s case did not constitute ineffective assistance of
counsel, inasmuch as any such motion would have had no chance of
success” (People v Horton, 79 AD3d 1614, 1616, lv denied 16 NY3d 859;
see generally People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d
702). 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
generally People v Baldi, 54 NY2d 137, 147).




Entered:   July 1, 2011                        Patricia L. Morgan
                                               Clerk of the Court
