Gangbanger as 'Terrorist'

A 9/11 anti-terror law turns out to be handy against small-time hoods

While most prisoners at Rikers Island stay less than a year, inmate No. 2100400442 has been on ice there for 37 months, making him the jail's longest-standing resident. He's also Rikers' only "terrorist."

Or at least that's the state's contention. But sometime in the coming weeks when his case finally goes to trial, there will be no special security provisions, no bulletproof vests, not even an explosives-sniffing dog.

The fact that it's expected to be business as usual at Bronx Supreme Court when Edgar "Puebla" Morales goes on trial says a lot about New York State's hastily enacted terrorism law.

Almost six years after the state's Anti- Terrorism Act of 2001 was passed, Bronx District Attorney Robert Johnson is about to use the law for the first time not to go after a bin Laden protégé but a diminutive Bronx gangbanger.

Adopted by the legislature six days after 9/11 with almost no debate, the law was initially viewed as a symbolic gesture because tougher federal terrorism laws already existed. In fact, Assembly Speaker Sheldon Silver commented at the time that he didn't think there would ever be a prosecution under the state law, saying he voted for it more as a show of legislative solidarity in a time of crisis.

With jury selection currently under way in People v. Morales, Silver is about to be proved wrong.

Using one of the law's broad definitions of terrorism, "an offense that is intended to intimidate or coerce a civilian population," the prosecution contends that the "agreed-upon objective" of Morales and the St. James Boys gang was to control a swath of the Bronx between University and Webster avenues, from East 170th to East 205th streets, purely to "enhance their status." The targeted "civilian population," according to Johnson's statements following the May 2004 indictment, were "hard-working, law-abiding citizens, including fellow immigrants from Mexico." Johnson declines comment, but he said at the time that "the terror perpetrated by gangs . . . also fits squarely within the scope of the statute."

Michael Balboni, head of the state's Homeland Security Office, has called the Morales case an "unanticipated application" of the law he co-authored when he was a Long Island state senator. But when it comes to its use, he says, he defers to the district attorneys.

Though the indictment details typical gang crimes to support the terrorism charge, the case really boils down to one incident: In August 2002, the St. James Boys crashed a christening party at St. Paul's Evangelical Lutheran Church in the Bronx. Initially, as the kids tried to break open a piñata, there were no problems. But once the gang members got drunk they grabbed the DJ's microphone and gave shout-outs while dissing the rival Vagabundos gang. Eventually, the St. James Boys got into it with some guests outside the church. Punches led to gunfire, and a stray bullet struck 10-year-old Malenny Mendez in the head as she tried to run away from the fracas. A second innocent bystander, Javier Tochimani-Fuentes, was left a quadriplegic by another errant shot.

Hours later, four of the gang members— including Cesar Rosas, whom police identified as Malenny's shooter, and gang leader Alejandro "Alex" Solis, who investigators said fired the shot that paralyzed Tochimani-Fuentes—were in a car headed to Mexico, according to prosecutors.

Edgar Morales was arrested in the Bronx four days after the shooting, but as a bit player, charged with criminal trespass and tampering with physical evidence. Morales spent the next 11 months in jail, until July 2003, when he pled guilty to misdemeanor trespassing and was released on time served. At that point, the shooters were nowhere to be found and the case was foundering. Nearly another year would pass before the prosecution took a new tack.

One of the men who had fled, Enrique "Kiko" Sanchez, had been arrested coming back into this country. He eventually pled guilty in the case and agreed to become a cooperating witness. Sanchez told detectives that Morales shot Malenny. However, Sanchez also said that gang leader Alex Solis sent him back to New York to take the fall and threatened to kill him and his family if he refused.

Morales's attorney, Dino Lombardi, claims that Sanchez then picked Morales to take the fall: "Kiko decided to put Edgar in the soup—little 5-foot-tall, 120-pounds-soaking-wet Edgar—because he's afraid of Alex."

Still, prosecutors did nothing with Sanchez's statement for a year and half. But in May 2004, with Rosas and Solis still in the wind, they got an indictment charging Morales with murder, attempted murder, assault, and gun possession—as acts of terrorism. The prosecution was now accusing Morales of firing the fatal shots.

On Thursday, Morales, now 25, turned down the prosecution's final offer of 20 to life, and the judge ordered jury selection to begin.

Ultimately, this anti-terrorism law is getting a test run because the St. James Boys were more like the Jets than the Bloods. They were small-time; their shit was all quien es mas macho. Had they been dealing drugs or involved in prostitution instead of always beefing with other gangs, the prosecution could have gone after them for racketeering. But without being able to bring a RICO case, the state opted for the terrorism law.

In fact, the slapped-together state law, with its vague definitions and lack of practical application against traditional terrorists, may ultimately prove to be the way to hammer violent youth gangs. In Morales's case, Lombardi says, the D.A. is using it like a cudgel: Plead guilty or face life without parole.

"I used to be a prosecutor and I'd do the same thing," says Lombardi. "If you give them that law, of course they're going to use it."

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