People v. Jenner

• Decision Date: 26 April 2007
• Docket Number: 16200.
• Citation: 39 A.D.3d 1083,2007 NY Slip Op 03599,835 N.Y.S.2d 501
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DONALD JENNER, Appellant.
• Court: New York Supreme Court — Appellate Division

39 A.D.3d 1083

835 N.Y.S.2d 501

2007 NY Slip Op 03599

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v.DONALD JENNER, Appellant.

16200.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided April 26, 2007.

Appeal from a judgment of the County Court of Madison County(McDermott, J.), rendered March 14, 2005, upon a verdict convicting defendant of the crime of making a terroristic threat.

Kane, J.

Defendant and his girlfriend resided in the City of Syracuse, Onondaga County.Prior to their cohabitation, the girlfriend's son was removed from her care and placed in the custody of the Department of Social Services(hereinafter DSS) of Madison County.Madison DSS employee Robin Streeter was the primary caseworker assigned to the girlfriend's case.Tim Brown was Streeter's supervisor.When the girlfriend moved to Onondaga County, Michelle Moon, an employee with DSS of Onondaga County, was assigned as a secondary caseworker.The ultimate goal of DSS was reunification of the girlfriend with her son.After learning that defendant had a criminal record, including a conviction for a sexual offense, Moon repeatedly advised defendant and his girlfriend of DSS's policy that a child not be permitted to have any contact, other than supervised visitation, with an untreated sex offender.Defendant never provided DSS with proof that he had completed a sex offender treatment program.As a result, Moon told defendant and his girlfriend that reunification with her son would not be possible as long as she continued to reside with defendant, unless he provided proof of completion of an approved treatment program.

At a May 3, 2004 unannounced home visit, Moon again informed the girlfriend of the DSS policy noted above.Defendant, who was entering the apartment and overheard Moon, became irate.He began yelling and cursing at Moon, stating "I'm sick of Madison and Onondaga County telling me what to do."Pointing at Moon, he continued, "I'll solve this problem.I'll walk right into Madison County DSS.I'll get a gun.And I'll take care of that f***ing b**** Robin Streeter and Tim Brown once and for all, and I'm not kidding.I've got nothing ... you think Columbine was something, I've got nothing to lose."In previous conversations, defendant had told Moon that he had been diagnosed with end stage liver disease and hepatitis C and had only months to live.Defendant mentioned numbers and letters commonly associated with gun models, such as AK 47, stated that he was a member of a militant Native American society and said, "I can get my hands on any kind of gun that I need at any time."He also directed epithets at Streeter.Upon leaving the apartment, Moon notified Streeter of defendant's threats.Streeter notified Brown and the police.

Defendant attempted to call the Onondaga County District Attorney while Moon was present, but he had to leave a message.On May 4, 2004, an investigator from the District Attorney's office returned the call.Defendant stated that he was upset with caseworkers from Madison and Onondaga DSS, specifically identifying Streeter and Moon.He indicated that he would carry through with his intentions from the previous day, although he would not repeat those intentions over the phone.

A Madison County grand jury handed up an indictment charging defendant with two counts of making a terroristic threat (seePenal Law § 490.20 [1]), the first count relating to his statements to Moon on May 3, 2004 and the second count relating to his statements to the investigator on May 4, 2004.After trial, the jury acquitted defendant of the second count, but found him guilty of the first count.Defendant appeals.

As relevant here, "[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, 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]).By not moving in County Court to dismiss the indictment on the ground that Penal Law § 490.20 is unconstitutional as applied, defendant failed to preserve that argument for our review (seePeople v Riddick,34 AD3d 923, 925[2006]).Were we to consider this argument, we would find that defendant failed to overcome the strong presumption that this legislative enactment is valid (seePeople v Stuart,100 NY2d 412, 422[2003]).Penal Law § 490.20 survives the test for constitutional vagueness because the statutory language sufficiently apprises persons of ordinary intelligence of the type of conduct that is forbidden and provides law enforcement officials with clear standards for enforcement (seeid. at 420-421 [2003];People v Riddick, supra at 925).Indeed, defendant acknowledges that his conduct was illegal but simply makes the assertion, irrelevant to his constitutional argument, that his conduct was not what the Legislature had in mind when it enacted this statute after the terroristic attacks of September 11, 2001 and he should not be labeled a terrorist.Regardless of the Legislature's intent, the plain words of Penal Law § 490.20 clearly inform the public and law enforcement officials of the conduct forbidden by the statute.

Contrary to defendant's contentions, the testimony of Moon, Streeter, Brown, the investigator and other witnesses sufficiently established that defendant threatened to kill DSS employees, this threat was intended to intimidate or coerce public employees to influence DSS's policy regarding contact between children and sex offenders, defendant intended through such a murder to interfere with DSS's conduct of enforcing this policy, and his words and conduct caused reasonable fear of the imminent commission of such a murder.The statute specifically eliminates as defenses the lack of intent or capability of committing the murders, and that the threat was made to someone other than a person subject to the threat (seePenal Law § 490.20 [2]).As the prosecution's witnesses established each element of the offense, the evidence was legally sufficient to support defendant's conviction.

Regarding defendant's argument that the indictment lacked sufficient precision and thereby deprived him of the opportunity to prepare an adequate defense, we find the indictment sufficient under CPL 200.50.Defendant could have sought more factual details through a demand for bill of particulars and, in any event, it appears that defendant was sufficiently aware of the basis for the charges and prepared a defense accordingly.

County Court did not abuse its discretion in denying defendant's motion for dismissal in the interest of justice.Such a dismissal is permissive rather than mandatory (seeCPL 210.20 [1][i]; 210.40 [1]), and courts should exercise their discretion in this regard sparingly, only in situations where there are compelling reasons (seePeople v Kennard,266 AD2d 718, 719[1999], lv denied94 NY2d 864[1999];People v Litman,99 AD2d 573, 574[1984]).Despite defendant's poor health and his argument that his actions did not fit the typical definition of terrorism so as to subject him to these charges, no injustice was likely to result from prosecuting him for threatening the lives of public servants (comparePeople v Tavares,273 AD2d 707, 707-708[2000], lv denied95 NY2d 939[2000]).Additionally, the court was not required to hold a hearing prior to denying this motion (seeid. at 708).

Having failed to request...