| People v Kaplan |
| 2019 NY Slip Op 00329 [168 AD3d 1229] |
| January 17, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gustavo Kaplan, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant.
Jason M. Carusone, District Attorney, Lake George (Travis A. Brown of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered March 3, 2017, upon a verdict convicting defendant of the crime of making a terroristicthreat.
Defendant was arrested in July 2015 for an incident that occurred in the Town of Horicon,Warren County. Items that were in his possession when he was arrested—a cell phone, apolice scanner, $2,707 in cash and rolling papers—were held as evidence by the WarrenCounty Sheriff's Office (hereinafter the WCSO). On August 2, 2016, the Chester Town Courtissued a certificate of disposition reporting that the case against defendant that arose from hisarrest in 2015 was concluded on that date. The certificate of disposition did not identify thecharges or the disposition of the charges; rather, it reported that the record was sealed. On thesame day that the certificate of disposition was issued, defendant presented it to Courtney Howse,the WCSO evidence custodian, and requested the return of his personal property. Howse denieddefendant's request, explaining that the certificate of disposition was insufficient because it didnot specify the manner of disposition of the charges and, further, that a policy of the WCSOprecluded her from releasing personal property held as evidence until at least 30 days afterdisposition of the case. Howse testified that defendant then became angry and, as he turned toleave, she heard him say that he was going to "come back and shoot the place down." Defendantwas arrested and charged by indictment with making a terroristic threat. Following a jury trial,defendant was convicted as charged and was thereafter sentenced to a prison term of five years,followed by three years of postrelease supervision. Defendant appeals.
Defendant first contends that his conviction was not supported by legally sufficient evidenceand was against the weight of the evidence. "When considering a challenge to the legalsufficiency of the evidence, we view the evidence in the light most favorable to the People andevaluate whether there is any valid line of reasoning and permissible inferences which could leada rational person to the conclusion reached by the jury on the basis of the evidence at trial and asa matter of law satisfy the proof and burden requirements for every element of the crime charged"(People v Croley, 163 AD3d1056, 1056 [2018] [internal quotation marks and citations omitted]). "As relevant here, '[a]person is guilty of making a terroristic threat when[,] with intent to . . . influence thepolicy of a unit of government by intimidation or coercion, or affect the conduct of a unit ofgovernment by murder, assassination or kidnapping, he or she threatens to commit or cause to becommitted a specified offense and thereby causes a reasonable expectation or fear of theimminent commission of such offense' " (People v Richardson, 167 AD3d 1064, 1066 [2018], quoting PenalLaw § 490.20 [1]). We recently noted that the Legislature enacted Penal Law article490 in the wake of the attacks of September 11, 2001 specifically to combat the evils ofterrorism, and that the statute must be applied only in a manner consistent with the uniquemeaning of the term terrorism by requiring proof of conduct aimed at influencing, as relevanthere, government action (People v Richardson, 167 AD3d at 1066). In that regard, wehave upheld convictions for making a terroristic threat where a defendant threatened to kill theGovernor unless an imprisoned terrorist was released (People v Rizvi, 126 AD3d 1172, 1174 [2015], lv denied 25NY3d 1076 [2015]), where a defendant threatened to kill a District Attorney and others unlessthe District Attorney ceased prosecuting a specified crime (People v Van Patten, 48 AD3d 30, 33 [2007], lv denied 10NY3d 845 [2008]) and where a defendant threatened to kill employees of a county's socialservices agency "[to] solve [his] problem" with the agency's policy governing contact betweenchildren and sex offenders (People vJenner, 39 AD3d 1083, 1084-1085 [2007], lv denied 9 NY3d 845 [2007]).
Notably, the record contains no evidence of a necessary element of the crime of making aterroristic threat—that defendant intended to influence a policy of a governmental unit byintimidation or coercion, or that he intended to affect the conduct of a unit of government bymurder, assassination or kidnapping. Howse testified that as defendant exited the lobby of theWCSO building, he was mumbling to himself and she "heard the word shoot." She then askeddefendant what he had said, and he replied by stating "come back and shoot the place down."Defendant made no statement relating his threat to any policy of the WCSO or demanding that ittake any specific action. We do not condone defendant's statement, which understandably raisedthe concern of the law enforcement officers involved. However, in our view, defendant's threat to"shoot the place down"—made in response to Howse's inquiry—did not evince anintent to influence the policy or actions of the WCSO but, rather, reflected his vented anger thathis property had not been returned to him (see People v Richardson, 167 AD3d at 1066).Accordingly, we conclude that the verdict finding defendant guilty of making a terroristic threatwas not supported by legally sufficient evidence and, therefore, his conviction must be reversed(see generally People v Tucker, 141AD3d 748, 751 [2016]). Defendant's remaining arguments are rendered academic.
Lynch, J.P., Mulvey and Devine, JJ., concur. Ordered that the judgment is reversed, on thelaw, and indictment dismissed.