A judge Thursday ruled prosecutors can reargue their case against...

A judge Thursday ruled prosecutors can reargue their case against Brian Hulsen, above, after she earlier dismissed a terroristic threat charge against him for allegedly referencing the Columbine shootings and making gestures he had a gun while a custodian at James H. Vernon School in East Norwich. Credit: NCPD

A Nassau judge who cited insufficient evidence in dismissing a terroristic threat charge against a former East Norwich school custodian said Thursday she’ll allow prosecutors to reargue their objections.

In September, police arrested Brian Hulsen, 41, of Bethpage, several days after a teacher heard him mention “Columbine” in a faculty room, according to court records.

Records show Hulsen, who worked at James H. Vernon School, also gestured as if he had a gun while alluding in conversation to what he would do if he was fired.

Acting State Supreme Court Justice Meryl Berkowitz said in a recent decision that despite Hulsen’s “horrifically disturbing language,” a necessary element of the felony charge wasn’t met because there was no proof of a crime’s “imminent commission.”

“Reference to a mass shooting cannot be lightly considered,” Berkowitz wrote, saying the alleged statement “provokes outrage” and was “especially forceful” because it was made by a school employee in a school.

“However, the statement itself does not constitute a crime,” she concluded.

Records show a teacher at the elementary school heard the threat on a Friday, reported it to school authorities the following Tuesday, and police took Hulsen into custody that Wednesday.

The judge’s decision said the teacher testified before a grand jury that she believed Hulsen wasn’t in the process of being fired. The witness also testified that if the custodian had said he was going to shoot up the school in an hour or the next day she would have immediately reported it.

Defense attorney Joseph LoPiccolo of Garden City said after Hulsen’s Mineola court appearance Thursday that the married father and stepfather has no criminal record and had worked for the Oyster Bay-East Norwich Central School District for about 15 years.

Hulsen resigned from his job at the end of September after he was suspended following his arrest, the attorney said.

“They overreached when they made this charge,” LoPiccolo said. “Really it was blowing off steam in the worst way possible, but it’s not a crime.”

The judge gave the attorneys April deadlines to submit their arguments in writing.

Prosecutors declined to comment Thursday.

Update: In May 2017, the Appellate Division, Second Department upheld the dismissal of Hulsen’s case on appeal, finding that prosecutors had failed to present legally sufficient evidence that Hulsen’s alleged threat of a school shooting was imminent.

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