Defendant Louis R. Allen moves for an order granting the following relief: 1. Granting a dismissal of the Indictment; 2. Granting to the defendant the right to inspect the Grand Jury Minutes, or in the alternative, to have the Court review the Grand Jury Minutes in camera, and with said review dismiss the Indictment; The following papers were read: Notice of Motion — Affirmation of Joseph E. Ruyack, III, Esq. — 1 – 3 Annexed Exhibits Maryellen Black Albanese, Esq.’s Affirmation in Response — 4 – 5 Affidavit of Service Grand Jury Minutes — Indictment — Voluntary Disclosure Form 6 – 8 Upon the foregoing papers it is hereby ORDERED that the defendant Louis R. Allen’s motion is decided as follows MOTION TO INSPECT GRAND JURY MINUTES AND DISMISS OR REDUCE INDICTMENT Defendant is charged with Making a Terroristic Threat in violation of the provisions of Penal Law §490.20(1). Making a Terroristic Threat requires that a person “with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination, or kidnapping, he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense” (Penal Law §490.20[1]). The allegations outlined by the People and established through the evidence presented to the grand jury are that the defendant posted a Snapchat1 story, which included a photograph of two guns (a long black gun and a black pistol with a clip) laid out on a bed. The text accompanying the photograph included statements to the effect that the defendant did not feel accepted, he hated everyone and everyone hated him. He stated that he had a plan to park at the high school parking lot, run down and “shoot it up.” He was going to shoot people during the homecoming football game, which was scheduled for the following day. When confronted by someone that his comments were not funny, the defendant responded that it was not a joke and he was going to do it. There was a homecoming football game scheduled the following day at the defendant’s former high school. Defendant asserts that the evidence against him is insufficient, essentially, because the People do not have “any physical evidence of any snap chat, text, or other social media platform hardcopy with the words and pictures attributed to the defendant.” He argues that the charge is “a gross overreaching, contorted and false narrative made to try and fit innocent or non-existent actions into a viable criminal charge” and that a school district cannot be deemed a governmental entity, nor can it be classified as an identifiable civilian population. Defendant asserts that the alleged threats were not made to any identifiable person or entity and any threats would be, at most, akin to a personal vendetta. The defendant reasons that his conduct was not what the Legislature had in mind when it enacted this statute after the terrorist attacks of September 11, 2001 and he should not be labeled a terrorist. The defendant is correct in that there are no allegations, and no reasonable view of the evidence, to support that he was seeking to influence the policy or actions of the government. While a public school district is a part of a local government and is at the very least a quasigovernmental agency that may qualify under the statute2, defendant’s threats were not seeking to influence any policies and there was no evidence presented to the grand jury that defendant was seeking to affect the conduct of the school district. Therefore, it is not necessary for this Court to reach a conclusion as to whether a public school district can constitute a unit of government under the statute. The issue is whether the defendant was acting with the intent to intimidate or coerce a civilian population by threatening to commit a specified offense and whether his conduct caused a reasonable expectation or fear of the imminent commission of such offense. Specified offenses include many class A and violent felonies, as well as attempts to commit those crimes (Penal Law §490.05[3][a], [b]). Threatening to shoot people certainly qualifies as a specified offense under the statute, however, Article 490 does not contain a statutory definition of “intent to intimidate or coerce a civilian population.” The defendant argues that his conduct was not what the Legislature had in mind when it enacted this statute after the terroristic attacks of September 11, 2001 and he should not be labeled a terrorist. The Court of Appeals determined that rival gang members do not constitute a “civilian population” within the meaning of the statute, and gang-on-gang street violence does not constitute terrorism as that concept is commonly understood (see People v. Morales, 20 NY3d 240 [2012]). However, this Court does not read that case to exclude domestic terrorism against a civilian population, nor does it require that the “civilian population” be identified by name. “The plain words of Penal Law §490.20 clearly inform the public and law enforcement officials of the conduct forbidden by the statute” (People v. Jenner, 39 AD3d 1083, 1086 [3rd Dept., 2007]). Further, “[c]ontrary to defendant’s contentions, the testimony of [the Grand Jury] witnesses sufficiently established that defendant threatened to ['start shooting people' at the homecoming game], this threat was intended to intimidate or coerce [a civilian population], and his words and conduct caused reasonable fear of the imminent commission of such a [shooting]” (People v. Jenner, 39 AD3d 1083, 1086 citing Penal Law §490.20[2]). This Court holds that people attending or intending to attend a high school homecoming game qualify as “a civilian population” within the scope of Penal Law §490.20[1]. While a private conversation between teenage friends, without more, may not establish the element of intent to intimidate a civilian population, even when the subject matter includes going to a school to shoot other students and the principal3, the instant case does not qualify as a private conversation. The defendant’s alleged threat — that he was going to park in the parking lot, run down the hill, and just start shooting people — was not limited to people who he hated and who hated him. He posted the threat in a story, not in a private message. There is evidence that the defendant did “quick add” as many people as he could, and that he was an avid Snap Chat user. He did not limit the publication of his story in any way. Photographs of guns laid out on a bed, coupled with the threat and the subsequent response that it was not a joke and he was going to do it, made the expectation or fear of the imminent commission of that crime reasonable. The threat is not considered in a vacuum. The threat has context by considering the circumstances surrounding the threat. There was a homecoming game scheduled the next day. The question is not whether the defendant was capable of carrying out his threats, but whether there is a reasonable inference that those threats placed the victim in fear of imminent harm and whether that fear was reasonable. When confronted about the story he posted, the defendant’s response was that it was not a joke and he was going to do it. The fear of imminent harm was reasonable under these circumstances. Penal Law Section 490.20 “specifically eliminates as defenses the lack of intent or capability of committing the [shooting], and that the threat was made to someone other than a person subject to the threat” (People v. Jenner, 39 AD3d 1083, 1086 citing Penal Law §490.20[2]). Accordingly, the defendant’s motion to dismiss the Indictment must be denied (see People v. Rizvi, 126 AD3d 1172 [3rd Dept., 2015]; People v. Lleshi, 100 AD3d 780 [2nd Dept., 2012]; People v. Lewis, 54 Misc 3d 230 [2016]; People v. VanPatten, 8 Misc 3d 224 [2005]; Matter of Horan A., 74 AD3d 1192 [2nd Dept., 2010]; People v. VanPatten, 48 AD3d 30 [3rd Dept., 2007]; People v. Bernard, 60 Misc 3d 676 [2018]). As such, the motion is denied. The Court has reviewed the minutes of the Grand Jury and finds that the Indictment is based upon legally sufficient evidence and that the Grand Jury was properly instructed with respect to the applicable law. ADJOURNED DATE This matter is scheduled for a conference on February 10, 2020 at 9:30 A.M. The defendant, defendant’s counsel, and District Attorney are directed to be present. The aforesaid constitutes the Decision and Order of the Court. Dated: February 7, 2020
