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Ruling Rebuffs Use of Terrorism Statutes Against Gang Activity
New York Law Journal
ALBANY - The state's highest court ruled yesterday that criminal activity traditionally ascribed to gangs cannot be prosecuted under the anti-terrorism statutes enacted in the wake of the Sept. 11, 2001, attacks by Muslim extremists.
The Court of Appeals not only found in its 6-0 decision that Bronx prosecutors improperly invoked the anti-terrorism law against Edgar Morales, a member of a street gang known as the St. James Boys, but that by pursuing their terrorism-themed prosecution, they "unduly prejudiced" Morales by tying him to years of criminal activities by other members of his gang unrelated to the offenses at issue.
The court in People v. Morales, 186, threw out Morales' conviction for first-degree manslaughter, second-degree attempted murder, weapons possession and conspiracy and ordered a new trial.
The Court of Appeals said the crux of the prosecution's case against Morales was that he allegedly committed a "crime of terrorism" under Penal Law §490.25. The state statute defines a terrorist act as one committed with the "intent to intimidate or coerce a civilian population, 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."
Prosecutors alleged that Morales and other members of the St. James Boys were engaged in an attempt to "coerce" the Mexican-American population by demonstrating that they were the toughest Mexican gang in the Bronx.
Morales was charged in connection with the fatal shooting at an Aug. 17, 2002, christening party of 10-year-old Melany Mendez, an innocent bystander when Morales shot at a man he and other St. James Boys believed was a member of a rival gang. The man's companion was paralyzed in the incident.
The Court of Appeals said that while the results of the shooting were "tragic," they did not form the basis of a terrorist act.
"If we were to apply a broad definition to 'intent to intimidate or coerce a civilian population,' the People could invoke the specter of 'terrorism' every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate's soldier," Judge Victoria Graffeo (See Profile) wrote for the court. "But the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act."
Graffeo added, "The Legislature did not intend for the crime of terrorism to cover the illegal acts of a gang member committed for the purpose of coercing or intimidating adversaries."
The court said it agreed with the defense's argument that by attempting to invoke the terrorism statute, the prosecution was able to "introduce evidence about numerous alleged criminal acts" committed by members of the St. James Boys members from mid-2001 to mid-2004. Prosecutors ultimately indicted 20 St. James Boys members on 70 counts that included both traditional gang-related violence charges and terrorist acts.
The evidence of some of those crimes introduced created a "spillover effect" on the fair prosecution of Morales for the shootings and warranted reversal of his conviction and a retrial, the court held.
"Without the aura of terrorism looming over the case, the activities of defendant's associates in other contexts would have been largely, if not entirely, inadmissible," Graffeo wrote.
Chief Judge Jonathan Lippman (See Profile) and Judges Carmen Beauchamp Ciparick (See Profile), Susan Phillips Read (See Profile), Robert Smith (See Profile) and Eugene Pigott Jr. (See Profile) joined the ruling.
The decision affirmed, in part, the finding by the Appellate Division, First Department, which said that Morales' crimes did not qualify as terrorism. But the lower court upheld Morales' conviction (NYLJ, Nov. 10, 2010).
Peter Coddington, the chief appellate attorney in the Bronx District Attorney's Office, argued for the prosecution.
Catherine Amirfar, a Debevoise & Plimpton attorney who handled the case pro bono, said the court made clear that the Legislature did not intend that crimes related to "regular gang violence" be treated as terrorism for purposes of the 2001 statute.
"I think that it's a tremendous decision. It can only be described as a landmark decision," Amirfar said. "I think the court determined that the result was unjust and that the prosecution's approach here was an unconscionable stretch of what we know terrorism to be."
Amirfar said she intended to remain Morales' attorney for a retrial.
In an amicus curiae brief filed to support the defendant's position, the Center on the Administration of Criminal Law at New York University School of Law argued that the Penal Law is replete with statutes that adequately punish gang-related crimes without the need for prosecutors to resort to laws that were enacted in response to 9/11-style terrorism.
The center contended that misapplying the anti-terrorism statutes toward gang violence harms prosecutors' ability to combat both terrorists and gang members.
"First, misapplication unnecessarily jeopardizes counter-terrorism efforts by lending credence to the argument that terrorism statutes are illegitimate, ineffective or both," Nicholas Goldin and David Edwards of Simpson Thacher & Bartlett wrote for the center. "Second, misapplication disrupts the careful policy balance that New York has struck in order to reduce gang activity, which includes a deliberate mix of traditional criminal sanctions and gang prevention programs."
Morales, 30, was convicted by a jury and received an aggregate term of 40 years to life for manslaughter, attempted murder, criminal possession of a weapon and conspiracy from Bronx Supreme Court Justice Michael Gross. All but the conspiracy charge were tried as crimes of terrorism.
The defendant's attorneys estimated that without the enhanced penalties through the terrorism-related charges, Morales would likely have received a 20-to-40-year sentence.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.