People v. Morales

• Decision Date: 09 November 2010
• Citation: 81 A.D.3d 1,911 N.Y.S.2d 21
• Parties: The PEOPLE of the State of New York, Respondent, v. Edgar MORALES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 21

81 A.D.3d 1

The PEOPLE of the State of New York, Respondent,

v.Edgar MORALES, Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

Nov. 9, 2010.

Debevoise & Plimpton LLP, New York (Catherine M. Amirfar, Benjamin Sirota, Ana Frischtak, Poonam Kumar and Naila B. McKenzie of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Peter D. Coddington and Justin J. Braun of counsel), for respondent.

ANGELA M. MAZZARELLI, J.P., DAVID FRIEDMAN, JAMES M. CATTERSON, SHEILA ABDUS-SALAAM, JJ.

FRIEDMAN, J.

Six days after the devastating attacks of September 11, 2001 (9/ 11), the Legislature passed the Anti-Terrorism Act of 2001 (L 2001, ch. 300), which included, among other measures, article 490 of the Penal Law, entitled "Terrorism," defining various terrorism-related offenses. Penal Law § 490.25(1) provides, in pertinent part, that a person is guilty of a " crime of terrorism" when he or she commits a "specified offense" as defined in Penal Law § 490.05(3)(a) (including any violent felony offense as defined in Penal Law § 70.02) "with intent to intimidate or coerce a civilian population." ¹ A person found guilty of a specified offense as a crime of terrorism is subject to substantial enhancement of the penalty, as provided in Penal Law § 490.25(2).

On August 18, 2002, a fight among members of rival gangs broke out following a party in the Bronx. In the course of the fighting, shots were fired, resulting in the death of a 10-year-old girl and the paralysis of a young man. Defendant Edgar Morales, a member of a gang of Mexican-American young adults and teenagers known as the St. James Boys (SJB), was ultimately charged with having committed these shootings. In what appears to have been the first prosecution for a crime of terrorism under Penal Law § 490.25, the People proceeded against defendant on the theory that he committed the charged specified offenses as crimes of terrorism because he acted with the intent to further the alleged purpose of the SJB gang to "intimidate or coerce a civilian population." The People alleged that the "civilian population" defendant and his gang targeted for intimidation comprised Mexican-Americans residing in the area of the Bronx in which the SJB sought to assert its dominance. This area is sometimes described in the record as the general vicinity of St. James Park, although the People's expert witness on gangbehavior testified that the area extends (east to west) from Webster Avenue to University Avenue and (north to south) from 204th Street to 170th Street.²

A jury trial resulted in defendant's conviction for three specified offenses as crimes of terrorism (manslaughter in the first degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree) and one non-terrorism offense (conspiracy in the second degree). This appeal-apparently the first arising from a prosecution under Penal Law § 490.25-ensued.³

It is the People's position that individuals of a particular ethnicity living in a particular urban neighborhood or group of neighborhoods may constitute "a civilian population" within the meaning of Penal Law § 490.25(1). Defendant argues, to the contrary, that the Anti-Terrorism Act, as a response to 9/11, was intended to address criminal acts carried out for the purpose of creating a mass impact, on the scale of a country, state or city. This standard is not met, according to defendant, by acts that would intimidate only persons of a given ethnicity residing in a particular neighborhood, or group of neighborhoods, within a vastly larger city. Defendant further argues that, even if a community as relatively small as the Mexican-American population of the St. James Park area could constitute "a civilian population" within the meaning of § 490.25, the People's evidence was insufficient to establish that defendant committed specified crimes with the intent to coerce and intimidate the area's Mexican-American population as a whole. Defendant contends that, on this record, the subject incident could not reasonably be found to have been anythingmore than an act of inter-gang rivalry-a genuine evil, to be sure, but not the sort of criminality that Article 490 was intended to address.⁴

While we reject defendant's other challenges to his conviction (which are discussedlater in this writing), we find that the evidence is not legally sufficient to establish that he acted with the requisite intent to render his offenses crimes of terrorism. Specifically, even assuming in the People's favor that the Mexican-American residents of the St. James Park area may constitute "a civilian population" under Penal Law § 490.25(1), the evidence was insufficient to support a finding that defendant committed his crimes with the intent to intimidate or coerce that "civilian population" generally, as opposed to the much more limited category of members of rival gangs.⁵ We therefore reduce the convictions for crimes of terrorism to the corresponding specified crimes as lesser included offenses ( seeCPL 470.15[2][a] ), and remit for resentencing on those counts ( see CPL 470.20 [4] ).

The shootings with which defendant was charged arose from a confrontation at a christening party between members of defendant's gang, the SJB, and a suspected member of a rival gang. The party was held at a church located at 1891 McGraw Avenue in the Bronx.⁶ A number of SJB members, including defendant, appeared at the party uninvited and took to the stage, giving "shout-outs" (through the disc jockey) that described the SJB as superior to rival gangs (for example, calling themselves "the kings of the Bronx"). During the party, certain SJB members saw a young man named Miguel, whom they believed to be a member of a rival gang that they held responsible for a friend's death in a prior incident. Two SJB members confronted Miguel and demanded that he leave the party, but Miguel refused. Thereafter, according to the testimony of the People's main witness, a number of SJB members, including defendant, discussed how to respond to Miguel's perceived slight. The group agreed that they would beat up Miguel after the party. Defendant was to observe the proceedings while holding a handgun, which he was instructed to use if his friends were losing the fight. Defendant was provided with a gun, and the other SJB members assaulted Miguel and his companions as they left the party. In the course of the ensuing fighting, one of the SJB members called out for someone to shoot, and defendant pulled out the gun and fired five shots, resulting in the paralysis of one of Miguel's companions and, as stated, the death of a 10-year-old girl.

Nothing in the foregoing scenario-the heart of the People's case-suggests that the purpose of defendant's actions was to intimidate or coerce the Mexican-American population residing in the St. James Park area. Rather, the only purposes of defendant's actions that can be discerned from the facts adduced attrial are those of asserting SJB's dominance over rival gangs in general and pursuing a vendetta against Miguel'sgang in particular. This is confirmed by the evidence the People presented concerning the purpose of the SJB. The People's main fact witness (to whom we will refer as "ES"), a former leader of the SJB, testified that the gang's purpose was to "protect ourselves from the other gangs. They are our adversaries." Similarly, the People's expert witness on gang behavior, Detective James Shanahan, agreed in his testimony that the SJB members he had interviewed told him that "their purpose was to confront and assault rival gang members." Shanahan also testified that the SJB would stop and harass any young Mexican-American man observed in St. James Park suspected of being affiliated with a rival gang, but would not give such treatment to Mexican-Americans in the park who were not suspected of having such an affiliation. Even the People, in their appellate brief, acknowledge that "the members of other gangs ... were SJB's prime adversaries."

In arguing for upholding the convictions for committing the specified offenses as crimes of terrorism, the People rely heavily on evidence that the SJB sometimes preyed on area residents who were not gang members. Specifically, the People point to evidence that the SJB robbed patrons of a certain restaurant on Jerome Avenue and engaged in extortion of a local house of prostitution. However, the People identify nothing in the record from which it could reasonably be inferred that the actions of defendant and the other SJB members on the night in question were motivated by the desire to intimidate the Mexican-American community of the St. James Park area. Indeed, as previously noted ( see n. 6, supra ), the incident did not even occur within the SJB's territory, the home of the "civilian population" that, under the People's theory, the SJB intended to intimidate or coerce. Moreover, it should be borne in mind that a "crime of terrorism" within the meaning of Penal Law § 490.25(1) is not established unless the alleged terroristic intent is connected to the particular specified offense underlying the charge. To paraphrase a familiar legal maxim: " 'Proof of [terroristic intent] in the air, so to speak, will not do' " ( Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 341, 162 N.E. 99 [1928] [citation omitted] ). In any event, here, we see no evidence of intent to terrorize the Mexican-American community of the St. James Park area generally, whether connected to or disconnected from the underlying specified offenses.⁷

To the extent the People argue, as they did at trial, that members of other Mexican-American gangs in the SJB's area of the Bronx qualify as "a civilian population" under Penal Law § 490.25(1), we find this argument unavailing. While the term "a civilian population" might be literally susceptible to being applied to gang members of a particular ethnicity in a particular urban...