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The People &C v. Edgar Morales

December 11, 2012


The opinion of the court was delivered by: Graffeo, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

Shortly after the horrendous attacks on September 11, 2001, the New York Legislature convened in special session to address the ramifications of these terrorist actions. Confronted with the tragic events of that infamous day, the Legislature recognized that "terrorism is a serious and deadly problem that disrupts public order and threatens individual safety both at home and around the world" (L 2001, ch 300, § 4). It decided that New York laws needed to be "strengthened" with comprehensive legislation ensuring "that terrorists . . . are prosecuted and punished in state courts with appropriate severity" (id.).

The result was Penal Law article 490 and, among its provisions, was the new "crime of terrorism" (Penal Law § 490.25). It occurs when a person "commits a specified offense" 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" (Penal Law § 490.25 [1]). Specified offenses include many class A and violent felonies, as well as attempts to commit those crimes (see Penal Law § 490.05

[3] [a], [b]). Article 490 does not, however, contain a statutory definition of "intent to intimidate or coerce a civilian population" (Penal Law § 490.25 [1]). This appeal requires us to consider whether this phrase encompasses the acts perpetrated by defendant.


Defendant Edgar Morales was a member of a street gang known as the "St. James Boys" or "SJB" -- apparently named for the vicinity of the Bronx where the SJB operated (running from Webster Avenue to University Avenue and from 204th Street to 170th Street). The SJB was originally formed to protect its members from other gangs and its primary objective was to be the most feared Mexican gang in the Bronx. The SJB allegedly targeted and assaulted individuals who belonged to rival confederations, extorted monies from a prostitution business and committed a series of robberies.

On the evening of August 17, 2002, several SJB members, including defendant, went to a christening party in the Bronx. They saw a man named Miguel who they thought belonged to a gang that was responsible for a friend's death. When Miguel refused to comply with their demand to leave the party, they planned to assault him after the festivities ended. Defendant took possession of a revolver from another SJB member, agreeing to shoot Miguel if it appeared that his cohorts were losing the battle.

Around midnight, a fight broke out between the SJB members and Miguel and his companions. During the melee, a SJB member directed defendant to shoot and he fired five bullets from the handgun. Three shots hit one of the rivals and paralyzed him. A 10-year-old girl was shot in the head and died. After the SJB members fled the scene, defendant handed the gun to a female member who later passed the weapon to another SJB member. Another SJB member threw the five spent shell casings into a sewer.

After the incident, the police obtained a videotape of the christening party and using still photographs from the video, they distributed photos of suspects to the media. Subsequently, several SJB members identified defendant as one of the individuals involved in the shooting. When he was questioned by the police, defendant admitted that he attended the party but denied being the shooter, claiming that he was merely the person who carried the weapon away from the scene. Additional evidence was gathered during the investigation, including four shell casings retrieved from a sewer.

The People subsequently secured a 70-count indictment against the SJB members. Defendant, along with certain accomplices, was charged with crimes of terrorism pursuant to Penal Law § 490.25 predicated on: intentional murder in the second degree; manslaughter in the first degree; attempted murder in the second degree; gang assault in the first degree; and criminal possession of a weapon in the second degree. The underlying offenses were charged separately without the terrorism designations. Defendant and 19 others were also charged with conspiracy in the second degree based on a multitude of overt acts, including various assaults and homicides that occurred from mid-2001 to mid-2004.

During the trial, defendant challenged the sufficiency of the evidence supporting the terrorism charges. The defense argued that the activities of the SJB were "directed at rival gangs, almost exclusively" and there was "no real evidence, certainly not evidence sufficient to get to the jury on the element of acting with intent to intimidate or coerce a civilian population." The People maintained that the targeting of other gangs was covered by Penal Law article 490 and, in any event, there was adequate proof that the SJB engaged in acts intended to intimidate or coerce all Mexican-Americans in the pertinent geographical area.

Supreme Court denied the motion, concluding that the People had established a prima facie case of terrorism based on the five designated underlying offenses. The jury convicted defendant of three crimes of terrorism under Penal Law § 490.25 premised on first-degree manslaughter, attempted second-degree murder and second-degree weapon possession, as well as second-degree conspiracy for agreeing to commit first-degree gang assault as a crime of terrorism. Defendant was sentenced to an aggregate prison term of 40 years to life.

The Appellate Division, First Department, held that there was insufficient evidence to prove an intent to intimidate or coerce a civilian population because the People established that defendant only engaged in gang-related street crimes, not terrorist acts (86 AD3d 147 [2011]). As a result, the Appellate Division modified by reducing the terrorism convictions to the three primary offenses and the conspiracy conviction was reduced from second degree to fourth degree. Defendant's other challenges -- ...

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