PEOPLE v. FEELEY (2005)

Defendant appeals from a judgment convicting him following a jury trial of criminal contempt in the first degree (Penal Law § 215.51[b] [iii] ) and aggravated harassment in the second degree (§ 240.30[1] ) arising from evidence that he, inter alia, left an anonymous telephone message in which he threatened physical harm to the complainant in violation of an order of protection.   We reject the contention of defendant that he was denied effective assistance of counsel because defense counsel did not present expert voice identification testimony that would have exonerated him.   Defendant failed to demonstrate that any such expert voice identification testimony would have been favorable to him and thus has failed to demonstrate that he was prejudiced by the alleged failure of defense counsel to present such testimony (see generally People v. Clark, 6 A.D.3d 1066, 776 N.Y.S.2d 656, lv. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199;  People v. Jurgensen, 288 A.D.2d 937, 938, 732 N.Y.S.2d 815, lv. denied 97 N.Y.2d 684, 738 N.Y.S.2d 299, 764 N.E.2d 403).   Defendant failed to preserve for our review his remaining contention that the conviction of aggravated harassment is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the evidence is legally sufficient to establish that the anonymous telephone message left by defendant was “likely to cause annoyance or alarm” (§ 240.30[1][a];  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: