Defendant appeals from a judgment of the Supreme Court, Bronx County rendered December 10, 2007, convicting him, after a jury trial, of manslaughter in the first degree as a crime of terrorism, attempted murder in the second degree as a crime of terrorism, criminal possession of a weapon in the second degree as a crime of terrorism and conspiracy in the second degree, and imposing sentence.
A Bronx County Criminal lawyer said that 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 gang behavior testified that the area extends (east to west) from Webster Avenue to University Avenue and (north to south) from 204th Street to 170th Street.
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).
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 anything more 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.
While we reject defendant’s other challenges to his conviction, 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. We therefore reduce the convictions for crimes of criminal terrorism to the corresponding specified crimes as lesser included offenses, and remit for resentencing on those counts.
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, 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'”. 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 criminal offenses.
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. To decide this appeal, we need not define the minimum size of “a civilian population” that may be the target of terrorism for purposes of Penal Law article 490 10. Rather, it suffices to observe that the term “to intimidate or coerce a civilian population,” in the context of the aforementioned legislative findings, implies an intention to create a pervasively terrorizing effect on people living in a given area, directed either to all residents of the area or to all residents of the area who are members of some broadly defined class, such as a gender, race, nationality, ethnicity, or religion. The intention by a gang member to intimidate members of rival gangs, when not accompanied by an intention to send an intimidating or coercive message to the broader community, does not, in our view, meet the statutory standard. Domestic violence often resulted.
The foregoing conclusion is reinforced by the legislative history and judicial construction of similar definitions of terroristic intent in certain earlier-enacted federal statutes from which Penal Law article 490’s definition of such intent appears to have been derived in relevant part.
We reject defendant’s argument that the trial evidence was insufficient to support the judgment insofar as he was convicted of the specified offenses (attempted murder, manslaughter and weapon possession) as lesser included offenses underlying the terrorism charges and of conspiracy. The People’s chief fact witness was the aforementioned ES, a leader of the SJB and an accomplice in the crimes with which defendant was charged 15. It was permissible for defendant to be convicted based on ES’s testimony because that testimony found support in “corroborative evidence tending to connect the defendant with the commission of the offenses”.
The claim of error based on the court’s remarks to the voir dire panel is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. While it would have been preferable, in a case involving a terrorism charge, for the court to forgo the reference to jury service as a way to “speak back” to the 9/11 terrorists, we think it highly unlikely that the jurors misinterpreted this hortatory rhetoric as an invitation (in the words of defendant’s brief) to “vindicate their own rage at the terrorists by their treatment of case” that “undermined the impartiality of the proceedings.” Nothing in the court’s remarks likened defendant to the 9/11 terrorists; on the contrary, the court specifically explained that defendant was not being charged with politically motivated terrorism. Significantly, the trial took place a full six years after 9/11, and defendant does not claim that anything the jurors learned of his background might have caused them to connect him to the 9/11 terrorists. Further, given the vast scale of the 9/11 catastrophe, the distinction between those attacks and the crimes charged here was unmistakable.
We find unavailing defendant’s argument that the performance of his lead trial counsel was so deficient as to deny him effective assistance of counsel. To the extent defendant argues that counsel failed to make certain objections or to call certain witnesses, we presume, in the absence of a complete record developed by a motion to vacate the judgment pursuant to CPL 440.10, that counsel exercised professional judgment and strategic discretion in determining how to conduct the defense. In fact, the existing record reflects that counsel followed a coherent strategy that sought to show that defendant committed no crime beyond weapon possession, a charge that he was unlikely to defeat given the denial of his suppression motion. Further, counsel competently attacked the credibility of ES, the People’s main witness, and brought out the inconsistencies between his testimony and that of other witnesses. Ultimately, counsel obtained an acquittal on the second-degree murder charge, the most serious count of the indictment. While we do not condone counsel’s absences and tardiness, defendant fails to establish that these had any impact on the defense.
We reject defendant’s various arguments that his statements to the police should have been suppressed on his pretrial motion. We see no grounds for disturbing the suppression court’s determination, based on credible evidence, that the police committed no violation in entering defendant’s apartment when they first approached him for questioning.
Finally, as the case is being remitted for resentencing on the reduced counts of the judgment of conviction, defendant’s argument for reduction of his aggregate sentence of 40 years to life is academic.
Accordingly, the judgment of the Supreme Court, Bronx County rendered December 10, 2007, convicting defendant, after a jury trial, of manslaughter in the first degree as a crime of terrorism, attempted murder in the second degree as a crime of terrorism, criminal possession of a weapon in the second degree as a crime of terrorism and conspiracy in the second degree, and sentencing him to consecutive terms of 20 years to life on the manslaughter count and the attempted murder count, and to concurrent terms of 15 years on the weapon possession count and 5 to 15 years on the conspiracy count, should be modified, on the law, to reduce the conviction for manslaughter in the first degree as a crime of terrorism to manslaughter in the first degree, the conviction for attempted murder in the second degree as a crime of terrorism to attempted murder in the second degree, and the conviction for criminal possession of a weapon in the second degree as a crime of terrorism to criminal possession of a weapon in the second degree, and, as so modified, affirmed, and the case remitted to Supreme Court with directions to resentence defendant on the reduced counts of the judgment.
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