| People v Rizvi |
| 2015 NY Slip Op 02145 [126 AD3d 1172] |
| March 19, 2015 |
| Appellate Division, Third Department |
[*1](March 19, 2015)
| The People of the State of New York, Respondent, vAmir Syed Rizvi, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered July 27, 2011, upon a verdict convicting defendant of the crimes of makinga terroristic threat and identity theft in the first degree.
After a threatening email was directed to then-Governor David Paterson via hisgovernment website in April 2010, police investigators discovered that the email,although made to appear as though it had been sent by defendant's former spouse, wasactually sent by defendant from a computer located in the Brooklyn Public Library.Defendant was charged by indictment with making a terroristic threat and identity theft inthe first degree. Following a jury trial, defendant was convicted of the charges andsubsequently sentenced to a prison term of four years with three years of postreleasesupervision for the terrorist threat conviction and 2
Defendant contends that County Court's admission of statements rendered to policeinvestigators in violation of his Miranda rights deprived him of a fair trial. Wedisagree. The People bore the burden of demonstrating beyond a reasonable doubt "thatany custodial interrogation was preceded by the administration and defendant's knowingwaiver of his Miranda rights" (People v Mattis, 108 AD3d 872, 874 [2013], lvdenied 22 NY3d 957 [2013] [internal quotation marks and citation omitted]). Duringthe suppression hearing, County Court heard testimony that police investigators retrieveddefendant from his residence and informed him that they were taking him to a StatePolice barracks. While placed in handcuffs and sitting in the [*2]back of a police vehicle, an officer recited the requisiteMiranda warning from a preprinted card and asked defendant if he understood hisrights, to which defendant responded affirmatively. Defendant then responded to policequestioning for approximately 90 minutes in an interrogation room until he requested anattorney, at which point the interview stopped. Despite his insistence that he was nevergiven a warning and was subjected to coercive police tactics, the evidence before CountyCourt revealed that defendant knowingly and intelligently provided answers during theinterview. Further, there was no evidence indicating that defendant was suffering from amental defect at the time that would render his statements involuntary (see People v Sabines, 121AD3d 1409, 1411 [2014]; People v Pouliot, 64 AD3d 1043, 1045-1046 [2009], lvdenied 13 NY3d 838 [2009]). Accordingly, County Court properly declined tosuppress defendant's statements.
Defendant's argument that County Court improperly permitted certainMolineux evidence is also without merit. Evidence of a defendant's prior bad actsis permissible "when it is relevant to a material issue in the case other than defendant'scriminal propensity" (People vDorm, 12 NY3d 16, 19 [2009]; see People v Johnson, 106 AD3d 1272, 1274 [2013], lvdenied 21 NY3d 1043 [2013]). Here, the People's request to offer evidence ofdefendant's previous acts of sending threatening emails to government officials thatappeared to have been sent by defendant's former spouse and her family, as well astestimony from his former spouse regarding defendant's prior filing of false reportsagainst her, had significant probative value as it demonstrated defendant's intent andmotive and was inextricably interwoven with the facts surrounding the April 2010 emailat issue in this case. Furthermore, as the court provided limiting instructions to the juryand precluded the admission of the substance of the prior communications, it cannot besaid that defendant was prejudiced by such evidence (see People v Nehma, 101 AD3d 1170, 1173 [2012]; People v Kindred, 100 AD3d1038, 1039 [2012], lv denied 21 NY3d 913 [2013]; People v Edmunds, 21 AD3d578, 580 [2005], lv denied 5 NY3d 828 [2005]).
Defendant next contends that there was legally insufficient proof to support hisconviction of making a terroristic threat and that said conviction was contrary to theweight of the evidence.[FN*] In determining whether a verdict wassupported by legally sufficient proof, we must view the evidence in a light mostfavorable to the People to determine "whether there is any valid line of reasoning andpermissible inferences which could lead a rational person to the conclusion reached bythe jury" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Phoenix, 115AD3d 1058, 1061 [2014], lv denied 23 NY3d 1024 [2014]; People v Souffrant, 93 AD3d885, 886 [2012], lv denied 19 NY3d 968 [2012]). A conviction for making aterroristic threat relies upon proof, as is relevant herein, that the defendant "with intent to. . . affect the conduct of a unit of government by murder, assassination orkidnapping, he or she threatens to commit or cause to be committed a specified offenseand thereby causes a reasonable expectation or fear of the imminent commission of suchoffense" (Penal Law § 490.20 [1]).
At trial, the People presented evidence that showed defendant using a computerinside the library at the time that the email was sent. Trial testimony revealed that theemail threatened [*3]to murder the Governor, his spouseand other citizens of the state unless an imprisoned terrorist was released fromincarceration and, further, that law enforcement officials considered it a serious andimminent threat that warranted investigation (see People v Jenner, 39 AD3d 1083, 1086 [2007], lvdenied 9 NY3d 845 [2007]). Contrary to defendant's contention that the Peoplefailed to prove beyond a reasonable doubt that he possessed the requisite intent tocommit the charged crime, the trial evidence demonstrated that he sent the threateningemail to the Governor's office in order to induce government officials to seek criminalprosecution and possible deportation of his former wife. Moreover, the absence ofevidence that defendant had the necessary weaponry to carry out the threatened conductdid not undermine the strength of the People's case (see Penal Law§ 490.20 [2]; People v Jenner, 39 AD3d at 1086). As the trialevidence fully established all of the required elements, we conclude that defendant'sconviction was supported by legally sufficient evidence. Further, even if defendant hadshown that a different result would not have been unreasonable, viewing the evidence ina neutral light and giving deference to the jury's credibility determinations leads us toconclude that defendant's conviction is not against the weight of the evidence (seePeople v Bleakley, 69 NY2d at 495; People v Byron, 85 AD3d 1323, 1325-1326 [2011], lvdenied 17 NY3d 857 [2011]).
Finally, in our review of defendant's argument that the sentence is harsh andexcessive and must be reduced, given the absence of extraordinary circumstances or anabuse of the sentencing court's discretion, we decline to modify the sentence (see People v Ramirez, 118AD3d 1108, 1113 [2014]; People v Warner, 110 AD3d 1339, 1340 [2013], lvdenied 22 NY3d 1091 [2014]; People v Kendall, 91 AD3d 1191, 1193 [2012]). Here, thesentence imposed was less than the maximum statutory sentence and was reasonable inlight of the serious nature of the crime (see People v Monteiro, 93 AD3d 898, 900 [2012], lvdenied 19 NY3d 964 [2012]; People v Hanrahan, 9 AD3d 689, 689 [2004]). Therefore,the sentence shall remain undisturbed.
Those arguments raised in defendant's supplemental pro se brief have beenconsidered and found lacking in merit.
McCarthy, J.P., Rose and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's failure tospecifically discuss in his brief that the identity theft conviction was not supported bylegally sufficient evidence and was against the weight of the evidence renders thoseclaims abandoned (see People vGorham, 18 AD3d 1024, 1025 n [2005]).