People v. Ferhani

• Decision Date: 25 June 2012
• Docket Number: No. 2461/11.,2461/11.
• Citation: 966 N.Y.S.2d 348,37 Misc.3d 1232,2012 N.Y. Slip Op. 52297
• Parties: The PEOPLE of the State of New York, v. Ahmed FERHANI, Defendant.
• Court: New York Supreme Court

37 Misc.3d 1232
966 N.Y.S.2d 348
2012 N.Y. Slip Op. 52297

The PEOPLE of the State of New York,
v.
Ahmed FERHANI, Defendant.

No. 2461/11.

Supreme Court, New York County, New York.

June 25, 2012.

Elizabeth M. Fink, Lamis J. Deek, Gideon Orion Oliver, Sarah Kunstler and Rebecca Heinegg, Esq., Brooklyn, for the defendant.

Assistant District Attorneys Margaret Gandy and Gary J. Galperin, New York County District Attorney's Office, New York City, for the prosecution.

MICHAEL J. OBUS, J.

Defendant Ahmed Ferhani and co-defendant Mohamed Mamdouh have been indicted for conspiracy in the fourth degree (PL 105.10[1] ), attempted criminal possession of a weapon in the first degree (PL 110/265.04[1] ), four counts of criminal possession of a weapon in the second degree (three counts of PL 265.03[3] and one of PL 265.03[1][b] ), criminal possession of a weapon in the third degree (PL 265.02[5][i] ) and, as to defendant Ferhani alone, two counts of criminal sale of a weapon in the third degree (265.11[2] ). All of those counts have been charged as crimes of terrorism (PL 490.25[1] ). In addition, both defendants have been indicted for a second count of conspiracy in the fourth degree, again pursuant to PL 105.10(1), but as a hate crime (PL 485.05[1][b] ). The charges arise from an undercover police operation whereby the defendants allegedly purchased, possessed and re-sold various handguns and an inert hand grenade to commit and finance violent acts against those the defendants held responsible for the mistreatment of Muslims—primarily Jews, but also Christians and other non-Muslims—in non-Muslims' houses of worship.

This decision addresses the various claims raised in defendant Ferhani's omnibus motion, namely, the alleged insufficiency of the indictment and evidence before the Grand Jury, as well as the asserted vagueness and overbreadth of the terrorism and hate crimes statutes. Defendant also moves to suppress certain evidence and to controvert search warrants, and for additional pre-trial discovery.

Sufficiency of Indictment and Evidence Before Grand Jury

Defendant raises a number of challenges to the sufficiency of the evidence before the Grand Jury, and apparently to the sufficiency of the indictment itself. ( See, e.g., Defense Memorandum p. 4 [“the indictment in this case is defective because it fails to include essential elements of PL § 490.25(1) (the Terrorism' charge) and PL § 485.05 (the Hate Crime' charge)”]; Defense Affirmation p. 6). To the extent defendant attacks the indictment as insufficient, those claims are unfounded. Each count includes the relevant statutory citations and alleges all of the elements of the underlying conspiracy and weapons offenses, as well as the terrorism and hate crime enhancements. People Levin, 57 N.Y.2d 1008 (1982); People v. Cohen, 52 N.Y.2d 584 (1981); People v. Rodriguez, 97 AD3d 246, 2012 WL 2044352 (1st Dept.2012); People v. Perez, 93 AD3d 1032 (3rd Dept.2012); People v. Yakubova, 11 AD3d 644 (2nd Dept.2004), lv. denied 4 NY3d 644 (2005); People v. Real, 293 A.D.2d 251 (1st Dept.), lv. denied98 N.Y.2d 680 (2002). As drafted, the indictment allows defendant adequate protection in that it provides “fair notice of the charges made against him, so that he can prepare a defense and ... avoid subsequent attempts to retry him for the same crime or crimes.” People v. Ray, 71 N.Y.2d 849, 850 (1988) (citations and internal quotations omitted); People v. Johnson, 92 AD3d 897 (2nd Dept.2012); People v. Welch, 46 AD3d 1228 (3rd Dept.2007).

Contrary to the arguments defendant raised in the March 13, 2012, oral argument before the Court, the terrorism charges as pleaded in the indictment are on their face sufficient and applicable to defendant's conduct as alleged in that document. While the Legislative Findings set forth in the introduction to Penal Law Article 490 do include, as defendant argues, reference to the bombings of the World Trade Center and various federal buildings, they also refer to terrorist acts of a much smaller scale, namely the 1994 murder of Ari Halberstam on the Brooklyn Bridge and the 1997 shooting atop the Empire State Building, which resulted in one death (in addition to that of the shooter) and six injuries. PL 490 .00. Defendant's alleged conspiracies, which included plans to shoot those attending religious services and to detonate at least one grenade in one synagogue, would have entailed at least equal carnage.

Contrary to defendant's additional oral argument, the first count of the indictment, alleging a conspiracy as a crime of terrorism, falls within the parameters of PL 495.05 and 490.25. The “specified offense” of that count is a fourth degree “conspiracy to commit” criminal possession of a weapon in the first and second degrees, the latter two offenses each constituting “a violent felony offense as defined in section 70.02 ... of this chapter.” PL 490.05(3)(a); see also PL 490.05(1)(a), 490.25(1). Likewise, the substantive crimes alleged in the non-conspiracy counts, attempted criminal possession of a weapon in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree pursuant to PL PL 265.02(5)(i) and criminal sale of a weapon in the third degree, are also PL 70.02 violent felony offenses included within the PL 490 .05(3)(a) definition of “specified offense.” ¹

Defendant's challenges to the sufficiency of the evidence underlying the indictment likewise lack merit. On a motion to dismiss an indictment, the Court may consider only the legal sufficiency of the evidence, for the adequacy of the proof is the exclusive province of the Grand Jury. See, e.g., People v. Swamp, 84 N.Y.2d 725, 730 (1994). Legally sufficient evidence, “[c]ompetent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof,” CPL 70.10(1), means a prima facie case, not proof beyond a reasonable doubt. Id. at 730,citing People v. Mayo, 36 N.Y.2d 1002, 1004 (1975). As Swamp directs, this Court has considered “[w]hether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction.” People v. Swamp, supra, 84 N.Y.2d at 730,citing People v. Mikuszewski, 73 N.Y.2d 407, 411 (1989); People v. Jennings, 69 N.Y.2d 103, 114–15 (1986).In his motion, defendant raises two specific challenges to the terrorism-enhanced counts, and two related to the hate crime count. He first argues, as to the terrorism counts, that both the indictment and the proof before the Grand Jury failed to establish his specific intent or plan to use the various named weapons, or a connection between the acquisition of those weapons and his purported religious animus or intent to intimidate or coerce a civilian population (Defense Memorandum pp. 6, 7–8; Defense Reply Memorandum pp. 7–8). To the contrary, defendant's intent to use the weapons, as well as the nexus between his acquisition of the weapons and his religious animosity, is apparent from both the indictment itself and the broader evidence introduced before the Grand Jury. The first conspiracy count, as well as each weapon count, alleges that it was committed “with intent to intimidate and coerce a civilian population,” and the overt acts alleged in support of the conspiracy charges—and again, reflected in the evidence before the Grand Jury—assert defendant's very tangible plans to use the weapons in a religiously-motivated fashion against Jews and other non-Muslims.

Specifically, defendant expressed his desire “to bring guns into the synagogue so that if anything went wrong with their plan, they could shoot the people inside the synagogue” (Overt Act 11). Further, during defendant's alleged purchase of the handguns and grenade, he told the undercover seller “that he was purchasing the weapons for the cause,” (Overt Act 46), defined elsewhere in the indictment (Introduction to Conspiracy Counts) and before the Grand Jury as defendant's plan to kill Jews and other non-Muslims based on their perceived mistreatment of Muslims. Likewise, the overt acts established before the Grand Jury and alleged in the indictment include defendant's desire “to blow up a synagogue as a warning to the Jewish people” (Overt Act 26), and other taped conversations introduced before the Grand Jury and provided to the defense establish that defendant included in his plans attacks on empty synagogues to serve as a warning that if Jews did not end their mistreatment of Muslims, they would be killed or harmed in the future. Defendant's argument in this regard is therefore one he must raise before a trial jury.

Defendant next argues that the terrorism counts of the indictment fail to allege, and the Grand Jury proof failed to establish, “conduct ... that targets any group of civilians, much less the entirety of civilians in a large geographic area, such as a country, a state or a city.” (Defense Affirmation p. 6). He relies on People v. Morales, 86 AD3d 147 (1st Dept.), lv. grtd. 17 NY3d 904 (2011), in which the Appellate Division, First Department, held legally insufficient the proof that various crimes arising from a shooting, during a fight between rival Mexican–American gangs, were committed as crimes of terrorism. In doing so, the First Department held that the gang at which the defendant shot did not constitute a “civilian population” within the scope of PL 490.25(1). It further held that, even assuming that the local Mexican–American community of the St. James Park area of Manhattan did constitute such a “population,” there was insufficient proof that the shooting was committed with the intent to intimidate or coerce that populace, notwithstanding the commission of unrelated crimes against local non-gang community members.

This case is very different. First, there is no question but that defendant Ferhani allegedly targeted a...