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New York state's top court rules gang activity is not terrorism

By Daniel Wiessner

ALBANY, New York (Reuters) - A New York state anti-terrorism law enacted in the wake of the September 11 attacks cannot be used to prosecute a street gang member convicted of shooting a 10-year-old girl and paralyzing a rival gang member, the state's Court of Appeals ruled on Tuesday.

The court ordered a new trial for Edgar Morales, 30, a member of the Bronx-based St. James Boys gang who was sentenced to up to life imprisonment for his role in the 2002 shooting.

Prosecutors had accused Morales and his gang of terrorizing the Mexican-American community in their neighborhood. They relied on a provision of a 2001 anti-terrorism law passed days after the September 11 attacks. Morales is the only gang member to have been prosecuted under the law, his lawyer said.

Under the law, a person is guilty of terrorism when he commits certain felonies with the "intent to intimidate or coerce a civilian population" or influence government policy.

But the Court of Appeals found that state lawmakers never intended to extend the definition of terrorism to traditional gang activities.

"The concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act," Judge Victoria Graffeo wrote for the court.

Morales' attorney, Catherine Amirfar, called the decision a "tremendous victory." A spokesman for Bronx District Attorney Robert Johnson said his office would retry Morales without the terrorism charges.

According to the court, Morales and several fellow gang members attended a christening party in 2002 in the Bronx, where members of a rival gang were present. A brawl ensued, the court said, during which Morales shot and killed the 10-year-old girl and paralyzed an adversary.

Morales was charged under the terrorism statute with manslaughter, attempted murder and weapon possession. He was also charged with conspiracy. The prosecution's theory was that Morales and his gang had sought to intimidate the Mexican-American community in their Bronx neighborhood.

ACTS OF TERRORISM

During trial, Morales moved to dismiss the terrorism charges, arguing there was insufficient evidence to support them. Acting Supreme Court Justice Michael Gross in the Bronx denied the motion.

Morales was convicted of all charges and sentenced to 40 years to life. Under the conviction, the first three crimes were considered acts of terrorism, which carry steeper penalties.

But a mid-level appeals court found in 2010 that Morales had engaged only in gang-related street crimes, and vacated the terrorism convictions. The court rejected Morales' argument that he had been denied a fair trial.

Tuesday's ruling went further, finding that the terrorism charges had a "spillover effect" on the trial because it allowed the prosecution to admit evidence of a number of uncharged crimes allegedly committed by Morales and his gang. The court ordered a new trial for Morales on the non-terrorism charges.

"Without the aura of terrorism looming over the case, the activities of (Morales') associates in other contexts would have been largely, if not entirely, inadmissible," Graffeo wrote.

"We knew the applicability of the terrorism statute was a novel legal issue, and that the statute would not apply to most street crimes," Bronx district attorney spokesman Steven Reed said.

(Editing by Cynthia Johnston and Peter Cooney)

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