Gangs of New York Are Terrorists? the Misapplication of the New York Antiterrorism Statute Due to the Lack of Comprehensive Gang Legislation

Article excerpt


On August 18, 2002, friends and family gathered for a baptism party in a church hall on McGraw Avenue in the Bronx, New York.1 Several members of the St. James Boys, a Mexican gang, were attending, including twenty-year-old Edgar Morales and gang leader Alejandro "Alex" Solis.2 During the festivities, Morales and his fellow gang member, Enrique Sanchez, confronted Javier Tocchimani, whom they believed to be a member of a rival gang, the Vagabondos.3 As tensions escalated, the group made its way out of the hall.4 Soon a fight erupted, and the gang members fired shot.5 A bullet hit Javier Tocchimai, paralyzing him.6 Tragically, a stray bullet also struck the head of an innocent bystander, ten-year-old Melanny Mendez, killing her instantly.7 Over eighteen gang members were charged in connection with Melanny's death, but most, including gang leader Solis, fled to Mexico.8

Edgar Morales, one of the gang members involved in the fight that day, was tried and convicted as a terrorist in a New York court.9 Morales was charged with manslaughter in the first degree10 for the girl's death, attempted murder in the second degree11 for the shooting of Javier Tocchimai, criminal possession of a weapon in the second degree,12 and conspiracy in the second degree.13 A Bronx jury found that all four of these offenses had been committed with the "intent to intimidate or coerce a civilian population" and, as such, they were "crime [s] of terrorism" under the New York Antiterrorism Act of 200 1.14 The characterization of the crimes as acts of terrorism enhanced the punishment for each crime.15 Morales was sentenced as a terrorist to two consecutive prison terms of twenty years to life.16

This Note argues that the New York antiterrorism statute should not have been applied to a Mexican gang member in the Bronx given the differences in the typical motive and scope between terrorism and gang violence. The misapplication of the New York antiterrorism statute by the prosecutors in the case against Morales highlights two deficiencies in the current New York Penal Code: an overly broad antiterrorism statute and a lack of comprehensive gang statutes. The lack of gang statutes in New York, particularly those that allow for sentence enhancement, and the vague language of the statute inspired prosecutors in the Bronx to improperly turn to a statute that was never intended to combat gang violence.

Part I of this Note details the background of the New York antiterrorism statute. It explains the relevant legislative history, as well as the structure and wording of the statute. Part II explores the controversial application of the New York antiterrorism statute to a gang member in the Bronx, setting out the arguments for and against its application, made by the Bronx District Attorney's Office and Morales, respectively.

Part III argues that the statute was inappropriately applied against a New York City gang member, an application which was permissible due to vague terms within the statute. By clarifying certain vague terms, such as "civilian population," and including other limiting phrases, the New York legislature could avoid similar misapplications in the future. Specifically, this Note recommends a new standard for defining an act of terrorism: political terrorism, in which the act of terrorism must be politically motivated and international in scope. This political terrorism standard will effectively exclude all local criminals, specifically gang members.

Lastly, Part IV recommends that the New York legislature create gang statues that address the prevalence of gang violence in New York State. The surprising lack of gang statutes available to law enforcement officials has encouraged prosecutors to attempt to remedy the situation by using several different statutes, including New York's antiterrorism statute.


A. Legislative History and Intent

The New York Antiterrorism Act of 2001 was enacted in direct response to the September 11, 2001, attacks on the World Trade Center and the Pentagon. …