                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 19, 2015                    104624
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

AMIR SYED RIZVI,
                    Appellant.
________________________________


Calendar Date:   January 9, 2015

Before:   McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

                             __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant, and appellant pro se.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


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 making a terroristic threat and
identity theft in the first degree.

      After a threatening email was directed to then-Governor
David Paterson via his government 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, was
actually 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 in the first
degree. Following a jury trial, defendant was convicted of the
                              -2-                104624

charges and subsequently sentenced to a prison term of four years
with three years of postrelease supervision for the terrorist
threat conviction and 2½ to 7 years for the identity theft
conviction, to be served concurrently. Defendant appeals.

      Defendant contends that County Court's admission of
statements rendered to police investigators in violation of his
Miranda rights deprived him of a fair trial. We disagree. The
People bore the burden of demonstrating beyond a reasonable doubt
"that any custodial interrogation was preceded by the
administration and defendant's knowing waiver of his Miranda
rights" (People v Mattis, 108 AD3d 872, 874 [2013], lvs denied 22
NY3d 957 [2013] [internal quotation marks and citation omitted]).
During the suppression hearing, County Court heard testimony that
police investigators retrieved defendant from his residence and
informed him that they were taking him to a State Police
barracks. While placed in handcuffs and sitting in the back of a
police vehicle, an officer recited the requisite Miranda warning
from a preprinted card and asked defendant if he understood his
rights, to which defendant responded affirmatively. Defendant
then responded to police questioning for approximately 90 minutes
in an interrogation room until he requested an attorney, at which
point the interview stopped. Despite his insistence that he was
never given a warning and was subjected to coercive police
tactics, the evidence before County Court revealed that defendant
knowingly and intelligently provided answers during the
interview. Further, there was no evidence indicating that
defendant was suffering from a mental defect at the time that
would render his statements involuntary (see People v Sabines,
121 AD3d 1409, 1411 [2014]; People v Pouliot, 64 AD3d 1043, 1045-
1046 [2009], lv denied 13 NY3d 838 [2009]). Accordingly, County
Court properly declined to suppress defendant's statements.

      Defendant's argument that County Court improperly permitted
certain Molineux evidence is also without merit. Evidence of a
defendant's prior bad acts is permissible "when it is relevant to
a material issue in the case other than defendant's criminal
propensity" (People v Dorm, 12 NY3d 16, 19 [2009]; see People v
Johnson, 106 AD3d 1272, 1274 [2013], lvs denied 21 NY3d 1043,
1045, 1046 [2013]). Here, the People's request to offer evidence
of defendant's previous acts of sending threatening emails to
                               -3-                104624

government officials that appeared to have been sent by
defendant's former spouse and her family, as well as testimony
from his former spouse regarding defendant's prior filing of
false reports against her, had significant probative value as it
demonstrated defendant's intent and motive and was inextricably
interwoven with the facts surrounding the April 2010 email at
issue in this case. Furthermore, as the court provided limiting
instructions to the jury and precluded the admission of the
substance of the prior communications, it cannot be said that
defendant was prejudiced by such evidence (see People v Nehma,
101 AD3d 1170, 1173 [2012]; People v Kindred, 100 AD3d 1038, 1039
[2012], lv denied 21 NY3d 913 [2013]; People v Edmunds, 21 AD3d
578, 580 [2005], lv denied 5 NY3d 828 [2005]).

      Defendant next contends that there was legally insufficient
proof to support his conviction of making a terroristic threat
and that said conviction was contrary to the weight of the
evidence.1 In determining whether a verdict was supported by
legally sufficient proof, we must view the evidence in a light
most favorable to the People to determine "whether there is any
valid line of reasoning and permissible inferences which could
lead a rational person to the conclusion reached by the jury"
(People v Bleakley, 69 NY2d 490, 495 [1987]; see People v
Phoenix, 115 AD3d 1058, 1061 [2014], lv denied 23 NY3d 1024
[2014]; People v Souffrant, 93 AD3d 885, 886 [2012], lv denied 19
NY3d 968 [2012]). A conviction for making a terroristic 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 or kidnapping, he or she threatens to
commit or cause to be committed a specified offense and thereby
causes a reasonable expectation or fear of the imminent
commission of such offense" (Penal Law § 490.20 [1]).




     1
        Defendant's failure to specifically discuss in his brief
that the identity theft conviction was not supported by legally
sufficient evidence and was against the weight of the evidence
renders those claims abandoned (see People v Gorham, 18 AD3d
1024, 1025 n [2005]).
                              -4-                104624

      At trial, the People presented evidence that showed
defendant using a computer inside the library at the time that
the email was sent. Trial testimony revealed that the email
threatened to murder the Governor, his spouse and other citizens
of the state unless an imprisoned terrorist was released from
incarceration and, further, that law enforcement officials
considered it a serious and imminent threat that warranted
investigation (see People v Jenner, 39 AD3d 1083, 1086 [2007], lv
denied 9 NY3d 845 [2007]). Contrary to defendant's contention
that the People failed to prove beyond a reasonable doubt that he
possessed the requisite intent to commit the charged crime, the
trial evidence demonstrated that he sent the threatening email to
the Governor's office in order to induce government officials to
seek criminal prosecution and possible deportation of his former
wife. Moreover, the absence of evidence that defendant had the
necessary weaponry to carry out the threatened conduct did not
undermine the strength of the People's case (see Penal Law
§ 490.20 [2]; People v Jenner, 39 AD3d at 1086). As the trial
evidence fully established all of the required elements, we
conclude that defendant's conviction was supported by legally
sufficient evidence. Further, even if defendant had shown that a
different result would not have been unreasonable, viewing the
evidence in a neutral light and giving deference to the jury's
credibility determinations leads us to conclude that defendant's
conviction is not against the weight of the evidence (see People
v Bleakley, 69 NY2d at 495; People v Byron, 85 AD3d 1323, 1325-
1326 [2011], lv denied 17 NY3d 857 [2011]).

      Finally, in our review of defendant's argument that the
sentence is harsh and excessive and must be reduced, given the
absence of extraordinary circumstances or an abuse of the
sentencing court's discretion, we decline to modify the sentence
(see People v Ramirez, 118 AD3d 1108, 1113 [2014]; People v
Warner, 110 AD3d 1339, 1340 [2013], lv denied 22 NY3d 1091
[2014]; People v Kendall, 91 AD3d 1191, 1193 [2012]). Here, the
sentence imposed was less than the maximum statutory sentence and
was reasonable in light of the serious nature of the crime (see
People v Monteiro, 93 AD3d 898, 900 [2012], lv denied 19 NY3d 964
[2012]; People v Hanrahan, 9 AD3d 689, 689 [2004]). Therefore,
the sentence shall remain undisturbed.
                              -5-                  104624

      Those arguments raised in defendant's supplemental pro se
brief have been considered and found lacking in merit.

     McCarthy, J.P., Rose and Egan Jr., JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
