City Court of Gloversville, July 24, 2018

Chad W. Brown, District Attorney, Johnstown (Christopher Stanyon of counsel), for plaintiff.

Andrew DeLuca for defendant.

The defendant, Gary Bernard, stands charged with one count of making a terroristic threat, a class D violent felony under Penal Law § 490.20. After a felony hearing on July 20, 2018, this court makes the following findings of fact and conclusions of law:

The evidence offered at the time of the hearing was the testimony of Sergeant (Sgt.) Robert Ruddy of the Gloversville Police Department. Sgt. Ruddy testified credibly that on July 16, 2018, the defendant, Gary Bernard, being held on bail on an unrelated charge, had been transported by the Sheriff's Office, to City Hall, for a scheduled court appearance. After making his appearance in City Court, the defendant was escorted out of the courtroom, and through police headquarters, by two sheriff deputies.

Upon entering the Police Department's main work area, the defendant, imitating the sound of gunfire, shouted "Boom! Boom! Boom!" Directing his comments to Sgt. Ruddy and the other officers in the room, he yelled, "That's what I'm gonna do after I'm released! I am going to kill all you cops! The next time you pull me over, I'm going to come out shootin'."^[FN1]

The purpose of a preliminary hearing is to determine whether there is reasonable cause to believe that the defendant committed a felony. Reasonable cause exists when evidence or information, which appears reliable, discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience, that it is reasonably likely that such offense was committed, and that the defendant committed it. The People must present nonhearsay proof of each element of the crime charged, including evidence that the offense was committed by the defendant.

Penal Law § 490.20 (1) states, in relevant part:

{**60 Misc 3d at 678}"A person is guilty of making a terroristic threat when with intent to . . . influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, . . . he or she threatens to commit . . . a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense."

As aptly stated in a case offered by the prosecution, the crime of making a terroristic threat under Penal Law § 490.20 has three elements: (1) the defendant must threaten to commit a specified offense as defined in Penal Law § 490.05 (3) (a); (2) the threat must be made with the intent to influence the policy of a unit of government by intimidation or coercion, or to affect the conduct of a unit of government by murder; and (3) the threat must cause a reasonable expectation or fear of the imminent commission of such offense.

Based upon the credible testimony provided at the time of the hearing, this court finds reasonable cause to believe that on July 16, 2018, in the City of Gloversville, the defendant, Gary Bernard, threatened to murder Gloversville City police officers, and that said threat was made with the intention of influencing the policies of that unit of government by intimidation or coercion, and with the intention of affecting their conduct.

As to the third and final element, this court's interpretation of the statute is consistent with the related and relevant case law that the threat must "cause[ ] a reasonable expectation or fear of the imminent commission of such offense" (Penal Law § 490.20 [1] [emphasis added]). Agreeing with the holding set forth in People v Van Patten (8 Misc 3d 224 [2005]), this final element has two components. First, the commission of the threatened conduct must be imminent, and second, the expectation or fear must be reasonable.

As it relates to the first component, the People argue, and this court agrees, that irrespective of the fact that the defendant was handcuffed, and in custody, the threat made by the defendant conveyed an intent to murder police upon his release from custody, and if not then, the next time police pulled him over for a traffic violation.

The reality that police would lack knowledge or notice of the defendant's release from [*3]custody, or that a traffic stop of a vehicle{**60 Misc 3d at 679} in which the defendant was the operator, or passenger, could occur at any time, and without warning, casts a shadow of uncertainty over the threats made by the defendant, and imparts a sense of imminency.

Penal Law § 490.20 (2) specifically provides that it shall be no defense to the charge "that the defendant did not have the intent or capability of committing the specified offense." This subdivision specifically provides for the lapse of time between the communication of the threat, and the actual commission of the specified offense. A threat, by its very nature, is a statement of intention, and is uttered with the purpose of instilling fear in the recipient of some future harmful conduct. Under this analysis, this court finds that the facts adduced at the preliminary hearing are sufficient to satisfy the imminency requirement under the statute.^[FN2]

Finally, while this court agrees with the prosecution that an objective standard must be applied to the analysis of what is reasonable, it does not agree that the subjective beliefs of the recipient, or intended target, are irrelevant to the court's determination.

At the time of the hearing, the prosecution objected to a question posed to Sgt. Ruddy, by defense counsel, asking whether the Officer felt threatened or fearful after hearing the defendant's statements. The prosecution argues that the Officer's subjective beliefs are irrelevant to an objective analysis under the statute. Without a ruling by this court, defense counsel withdrew the question.

This court interprets the language of the statute which criminalizes the making of a terroristic threat to require, as an element of the offense, evidence that the threat caused or created an expectation or fear of the imminent commission of the specified offense. The statute holds that a person is guilty of making a terroristic threat when, with intent to affect the conduct of a unit of government by murder, he or she threatens to commit the specified offense "and thereby causes a reasonable expectation or fear of the imminent commission of such offense" (Penal Law § 490.20 [1] [emphasis added]).

An objective analysis of a result, or an objective analysis of the expectations or fears caused by the threat, would be{**60 Misc 3d at 680} incomplete without evidence of what the recipient thought, felt, or believed after hearing it. Whether those subjective fears or expectations are reasonable is a question reserved for the trier of fact.

It is noteworthy that both decisions offered by the prosecution, People v Van Patten (8 Misc 3d 224 [2005]) and People v Thompson (72 NY2d 410 [1988]), and the case of People v Hulsen (150 AD3d 1261 [2017]), offered by the defense, each included a record of testimony provided by the recipient of the threat, regarding their subjective fears and expectations. In each case, the cause, or resultant feelings invoked by the threat, were evaluated objectively and considered by each court, as required under the statute.

Despite the divergence between this court's interpretation of the statute and that of the prosecution's, the charges do not fail.

There is sufficient testimony in the record that Sgt. Ruddy, after hearing the defendant's threats, took precautionary steps to notify his superiors, and thereafter disseminated notice of the [*4]threat to all department employees.

Viewing the evidence in the light most favorable to the People, and considering all permissible inferences which can be derived from the evidence, this court finds that Sgt. Ruddy possessed an expectation or fear that the threat was imminent and of such magnitude and significance that it was essential for him to warn his fellow officers. In light of the surrounding circumstances, this court finds such expectation or fear to be reasonable.

The People having satisfied their burden of proof in relation to every element of the offense charged, this court finds reasonable cause to believe that the defendant committed the felony of making a terroristic threat, in violation of Penal Law § 490.20, and this court hereby directs that the defendant be held for the action of a grand jury.