Court: Bronx gang member can't be tried as a terrorist

ALBANY -- New York's top court ruled Tuesday that a gang member cannot be prosecuted as a terrorist.

The Court of Appeals said in a unanimous decision that the Bronx district attorney's office erred when it used a state law enacted in the wake of the Sept. 11 terrorist attacks to elevate charges against Edgar Morales, a member of the St. James Boys or SJB gang, who was accused of killing a 10-year-old bystander in 2002.

The terrorism charge likely prejudiced jurors, the court said.

"There is no indication that the [state] Legislature enacted [the terrorism statute] with the intention of elevating gang-on-gang street violence to the status of terrorism," Judge Victoria Graffeo, one of the most conservative members of the court, wrote for the six-judge panel.

"Specifically, the statutory language cannot be interpreted so as to cover individuals or groups who are not normally viewed as terrorists," Graffeo said.

Bronx prosecutors said the gang sought to intimidate the Mexican-American community in the neighborhood where it operated, defined in court papers as running from Webster to University avenues, and 204th to 170th streets. The anti-terrorism law applies to crimes committed with "intent to intimidate or coerce a civilian population."

The judges said the prosecutors' claim didn't stand up to scrutiny. "By proceeding on the terrorism theory, [prosecutors] were able to introduce evidence about numerous alleged criminal acts committed by members of the SJB gang over the course of three years," Graffeo wrote.

"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 said.

The court on Tuesday ordered a new trial for Morales, who is serving a sentence of 40 years to life. He had been convicted of fatally shooting the bystander and paralyzing a rival gang member at a christening party.

"We presented specific evidence concerning the reasons and intentions of the gang, including evidence that their purpose went beyond intimidating another gang," said Steven Reed, a spokesman for Bronx District Attorney Robert Johnson. "We believed that this fit squarely within the language of the statue. We will now begin to reassemble the witnesses and retry the case."

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