People v Ferhani

[*1] People v Ferhani 2012 NY Slip Op 52297(U) Decided on June 25, 2012 Supreme Court, New York County Obus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2012
Supreme Court, New York County

The People of the State of New York,

against

Ahmed Ferhani, Defendant.



2461/11



For the defendant: Elizabeth M. Fink, Lamis J. Deek, Gideon Orion Oliver, Sarah Kunstler and Rebecca Heinegg, Esq., 36 Plaza Street, #1G, Brooklyn, New York, 11238

For the prosecution: Assistant District Attorneys Margaret Gandy and Gary J. Galperin, New York County District Attorney's Office, One Hogan Place, New York, New York, 10013.

Michael J. Obus, J.

Defendant Ahmed Ferhani and co-defendant Mohamed Mamdouh have been indicted for conspiracy in the fourth degree (PL 105.10[1]), attempted criminal possession of a weapon in the first degree (PL 110/265.04[1]), four counts of criminal possession of a weapon in the second degree (three counts of PL 265.03[3] and one of PL 265.03[1][b]), criminal possession of a weapon in the third degree (PL 265.02[5][i]) and, as to defendant Ferhani alone, two counts of criminal sale of a weapon in the third degree (265.11[2]). All of those counts have been charged as crimes of terrorism (PL 490.25[1]). In addition, both defendants have been indicted for a second count of conspiracy in the fourth degree, again pursuant to PL 105.10(1), but as a hate crime (PL 485.05[1][b]). The charges arise from an undercover police operation whereby the defendants allegedly purchased, possessed and re-sold various handguns and an inert hand grenade to commit and finance violent acts against those the defendants held responsible for the mistreatment of Muslims — primarily Jews, but also Christians and other non-Muslims — in non-Muslims' houses of worship.

This decision addresses the various claims raised in defendant Ferhani's omnibus motion, namely, the alleged insufficiency of the indictment and evidence before the Grand Jury, as well as the asserted vagueness and overbreadth of the terrorism and hate crimes statutes. Defendant also moves to suppress certain evidence and to controvert search warrants, and for additional pre-trial discovery.

Sufficiency of Indictment and Evidence Before Grand Jury

Defendant raises a number of challenges to the sufficiency of the evidence before the Grand Jury, and apparently to the sufficiency of the indictment itself. (See, e.g., Defense Memorandum p. 4 ["the indictment in this case is defective because it fails to include essential elements of PL § 490.25(1) (the Terrorism' charge) and PL § 485.05 (the Hate Crime' charge)"]; Defense Affirmation p. 6). To the extent defendant attacks the indictment as insufficient, those claims are unfounded. [*2]Each count includes the relevant statutory citations and alleges all of the elements of the underlying conspiracy and weapons offenses, as well as the terrorism and hate crime enhancements. People v. Levin, 57 NY2d 1008 (1982); People v. Cohen, 52 NY2d 584 (1981); People v. Rodriguez, __ AD3d __, 2012 WL 2044352 (1st Dept. 2012); People v. Perez, 93 AD3d 1032 (3rd Dept. 2012); People v. Yakubova, 11 AD3d 644 (2nd Dept. 2004), lv. denied 4 NY3d 644 (2005); People v. Real, 293 AD2d 251 (1st Dept.), lv. denied 98 NY2d 680 (2002). As drafted, the indictment allows defendant adequate protection in that it provides "fair notice of the charges made against him, so that he can prepare a defense and . . . avoid subsequent attempts to retry him for the same crime or crimes." People v. Ray, 71 NY2d 849, 850 (1988)(citations and internal quotations omitted); People v. Johnson, 92 AD3d 897 (2nd Dept. 2012); People v. Welch, 46 AD3d 1228 (3rd Dept. 2007).

Contrary to the arguments defendant raised in the March 13, 2012, oral argument before the Court, the terrorism charges as pleaded in the indictment are on their face sufficient and applicable to defendant's conduct as alleged in that document. While the Legislative Findings set forth in the introduction to Penal Law Article 490 do include, as defendant argues, reference to the bombings of the World Trade Center and various federal buildings, they also refer to terrorist acts of a much smaller scale, namely the 1994 murder of Ari Halberstam on the Brooklyn Bridge and the 1997 shooting atop the Empire State Building, which resulted in one death (in addition to that of the shooter) and six injuries. PL 490.00. Defendant's alleged conspiracies, which included plans to shoot those attending religious services and to detonate at least one grenade in one synagogue, would have entailed at least equal carnage.

Contrary to defendant's additional oral argument, the first count of the indictment, alleging a conspiracy as a crime of terrorism, falls within the parameters of PL 495.05 and 490.25. The "specified offense" of that count is a fourth degree "conspiracy to commit" criminal possession of a weapon in the first and second degrees, the latter two offenses each constituting "a violent felony offense as defined in section 70.02 . . . of this chapter." PL 490.05(3)(a); see also PL 490.05(1)(a), 490.25(1). Likewise, the substantive crimes alleged in the non-conspiracy counts, attempted criminal possession of a weapon in the first degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree pursuant to PL PL 265.02(5)(i) and criminal sale of a weapon in the third degree, are also PL 70.02 violent felony offenses included within the PL 490.05(3)(a) definition of "specified offense."[FN1]

Defendant's challenges to the sufficiency of the evidence underlying the indictment likewise lack merit. On a motion to dismiss an indictment, the Court may consider only the legal sufficiency of the evidence, for the adequacy of the proof is the exclusive province of the Grand Jury. See, e.g., People v. Swamp, 84 NY2d 725, 730 (1994). Legally sufficient evidence, "[c]ompetent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof," CPL 70.10(1), means a prima facie case, not proof beyond a reasonable doubt. Id. at 730, citing People v. Mayo, 36 NY2d 1002, 1004 (1975). As Swamp directs, this Court has [*3]considered "[w]hether the evidence, viewed most favorably to the People, if unexplained and uncontradicted — and deferring all questions as to the weight or quality of the evidence — would warrant conviction." People v. Swamp, supra, 84 NY2d at 730, citing People v. Mikuszewski, 73 NY2d 407, 411 (1989); People v. Jennings, 69 NY2d 103, 114-15 (1986).In his motion, defendant raises two specific challenges to the terrorism-enhanced counts, and two related to the hate crime count. He first argues, as to the terrorism counts, that both the indictment and the proof before the Grand Jury failed to establish his specific intent or plan to use the various named weapons, or a connection between the acquisition of those weapons and his purported religious animus or intent to intimidate or coerce a civilian population (Defense Memorandum pp. 6, 7-8; Defense Reply Memorandum pp. 7-8). To the contrary, defendant's intent to use the weapons, as well as the nexus between his acquisition of the weapons and his religious animosity, is apparent from both the indictment itself and the broader evidence introduced before the Grand Jury. The first conspiracy count, as well as each weapon count, alleges that it was committed "with intent to intimidate and coerce a civilian population," and the overt acts alleged in support of the conspiracy charges — and again, reflected in the evidence before the Grand Jury — assert defendant's very tangible plans to use the weapons in a religiously-motivated fashion against Jews and other non-Muslims.

Specifically, defendant expressed his desire "to bring guns into the synagogue so that if anything went wrong with their plan, they could shoot the people inside the synagogue" (Overt Act 11). Further, during defendant's alleged purchase of the handguns and grenade, he told the undercover seller "that he was purchasing the weapons for the cause," (Overt Act 46), defined elsewhere in the indictment (Introduction to Conspiracy Counts) and before the Grand Jury as defendant's plan to kill Jews and other non-Muslims based on their perceived mistreatment of Muslims. Likewise, the overt acts established before the Grand Jury and alleged in the indictment include defendant's desire "to blow up a synagogue as a warning to the Jewish people" (Overt Act 26), and other taped conversations introduced before the Grand Jury and provided to the defense establish that defendant included in his plans attacks on empty synagogues to serve as a warning that if Jews did not end their mistreatment of Muslims, they would be killed or harmed in the future. Defendant's argument in this regard is therefore one he must raise before a trial jury.

Defendant next argues that the terrorism counts of the indictment fail to allege, and the Grand Jury proof failed to establish, "conduct . . . that targets any group of civilians, much less the entirety of civilians in a large geographic area, such as a country, a state or a city." (Defense Affirmation p. 6). He relies on People v. Morales, 86 AD3d 147 (1st Dept.), lv. grtd. 17 NY3d 904 (2011), in which the Appellate Division, First Department, held legally insufficient the proof that various crimes arising from a shooting, during a fight between rival Mexican-American gangs, were committed as crimes of terrorism. In doing so, the First Department held that the gang at which the defendant shot did not constitute a "civilian population" within the scope of PL 490.25(1). It further held that, even assuming that the local Mexican-American community of the St. James Park area of Manhattan did constitute such a "population," there was insufficient proof that the shooting was committed with the intent to intimidate or coerce that populace, notwithstanding the commission of unrelated crimes against local non-gang community members.

This case is very different. First, there is no question but that defendant Ferhani allegedly targeted a sizable "civilian population" far larger than that involved in a local gang or even the gang's [*4]community.[FN2] Second, unlike the defendant in Morales, defendant Ferhani intended that his violence "intimidate or coerce" his targeted victims, PL 490.25(1), connecting his terroristic intent to the specified underlying offenses. He expressly hoped that by killing and injuring Jews and other non-Muslims, those non-Muslims would reconsider and abate what he perceived to be their mistreatment of Muslims world-wide. Thus, this case presents precisely what Morales lacked, "extraordinary criminal acts perpetrated for the purpose of intimidating a broad range of people," and the "inten[t] to create a pervasively terrorizing effect on people living in a given area, directed either to all residents of the area or to all residents of the area who are members of some broadly defined class, such as a gender, race, nationality, ethnicity, or religion." 86 AD3d at 156, 157.

Defendant's two arguments regarding the hate crime enhancement applicable to the second conspiracy count fare no better. While conceding that in the "weeks prior to the gun buy [defendant] . . . said he had no problem killings Jews, and had various vague conversations about blowing up places of worship, including but not limited to synagogues," defendant first argues that he did not "discuss using the guns he was purchasing to target Jewish people or any other group. Nor has the prosecution alleged any connection between [defendant's] alleged animus against Jews . . . and the purchase itself" (Defense Memorandum pp. 7-8). To the contrary, the taped conversations introduced into evidence provided an ample basis on which the Grand Jurors could conclude that defendant spent months planning to acquire weapons precisely so that he could use them to attacks Jews and other non-Muslims in their places of worship, whether or not he mentioned that during the brief purchase itself. In addition, as outlined in Overt Act 46, defendant allegedly told the second, gun-selling, undercover officer "that he was purchasing the weapons for the cause."

Defendant further argues that the second conspiracy count is insufficient because defendant did not "agre[e] with any other person to commit a specified offense," and instead shifted the offense he wished to commit (Defense Memorandum pp. 9-10). In his Reply Memorandum, defendant broadens this argument to include both conspiracy counts (p. 3), arguing that "the only clear agreement [defendant] made was an agreement to participate in the purchase of illegal weapons so he could sell them for money." Id. Defendant had no "cohesive plan,'" but instead espoused "random, free-floating, disconnected ideas." (Id. at pp. 3-4).

"A conspiracy consists of an agreement to commit an underlying substantive crime . . . coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy . . [*5]. ." People v. Caban, 5 NY3d 143, 149 (2005), quoting People v. Schwimmer, 66 AD2d 91, 95-96 (2nd Dept. 1978), aff'd for the reasons stated below, 47 NY2d 1004 (1979). Moreover, not every contingency and detail need be settled to consummate a conspiracy. People v. Washington, 8 NY3d 565 (2007)(trial evidence of conspiracy to commit murder in future sufficient albeit contingent upon defendant's release from prison, and settlement on contract fee for murder).

Here, the object crimes of the first, terrorism, conspiracy count are criminal possession of a weapon in the first and second degrees, not, as defendant seemingly argues, murder, assault or property damage against a specific religious site. The evidence before the Grand Jury was sufficient to support that body's conclusion that defendant sought and obtained firearms and a grenade outside his home or place of business and with the intent to use them unlawfully against another. Likewise, the object crimes of the second, hate crime, conspiracy are first degree criminal mischief and third degree arson, not murder or assault of specific congregants or attack on a particular house of worship. Once again, the evidence supported the Grand Jury's conclusion that defendant agreed with his co-conspirators to damage property by means of a hand grenade, and completed at least one overt act — the acquisition of what he thought to be a live grenade — in furtherance of that goal. That at various points during the conspiracy, defendant proposed fewer or greater victims, different modalities of injury and damage, or different non-Muslims' houses of worship did not render legally insufficient his agreement to possess the specified weapons or cause an explosion. People v. Washington, supra, 8 NY3d 565. While defendant's means may have evolved, his intent to harm non-Muslims and their houses of worship did not.

Finally, defendant's application for release of the Grand Jury minutes is denied. "[A] presumption of confidentiality attaches to the record of Grand Jury proceedings," which "can be overcome only by [an applicant's] demonstration of a compelling and particularized need for access.'" People v. Fetcho, 91 NY2d 765, 769 (1998), quoting Matter of Suffolk County District Attorney, 58 NY2d 436, 444 (1983). If the applicant "meets that initial burden, the trial court must then [exercise its discretion in balancing] the public interest for disclosure against the public interest favoring secrecy." Id.; accord People v. Robinson, 98 NY2d 755, 756 (2002); Matter of Lungen v. Kane, 88 NY2d 861, 862 (1996). Here, defendant's boilerplate request for disclosure of the minutes does not demonstrate "a compelling and particularized need for access" sufficient to meet his initial burden and overcome the presumption of confidentiality. People v. Fetcho, supra, 91 NY2d at 769. In addition, defendant has been provided with copies of numerous taped conversations between himself and undercover officers which formed the backbone of the evidence before the Grand Jury, and has been able to mount forceful arguments concerning the sufficiency of that evidence without disclosure of the minutes.

Vagueness and Overbreadth

Defendant argues that the terrorism and hate crime enhancement statutes are unconstitutionally vague and overbroad. While defendant served his motion on the District Attorney, he did not, however, provide the requisite notice of these challenges to the Attorney General of this State. Accordingly, defendant has failed to follow the proper procedure for a raising a question as to the constitutionality of a New York State statute, rule or regulation. CPLR 1012(b)(1), (3); People v. Perez, 93 AD3d 1032 (3rd Dept. 2012); People v. Woodard, 83 AD3d 1440 (4th Dept.), lv. den. 17 NY3d 803 (2011); People v. Whitehead, 46 AD3d 715 (2nd Dept. 2007), lv. den. 10 NY3d 772 (2008). [*6]

In any event, the Court finds that defendant's constitutional challenges lack merit. As the Court of Appeals has held in the context of void-for-vagueness challenges, "[a]n enactment of our Legislature is presumed to be valid and the heavy burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate the statute." People v. Bright, 71 NY2d 376, 382 (1988); accord People v. Stuart, 100 NY2d 412, 422 (2003)("legislative enactments carry a strong presumption of constitutionality") (citations omitted as to both). In fact, defendant's "heavy burden" is to prove the unconstitutionality of the statute "beyond a reasonable doubt." People v. Tichenor, 84 NY2d 769, 773, cert. den. 522 US 918 (1997); People v. Scalza, 76 NY2d 604, 607 (1990).

Defendant devotes little attention to his overbreadth claim: while it is raised in defense counsel's supporting Affirmation, it does not appear in defendant's Memorandum of Law or his Reply Memorandum. Moreover, the Affirmation argument is limited to a generalized statement that the "enhancements in this case raise serious First Amendment concerns, as they seek to increase the penalties on [defendant's] alleged gun sale based on statements allegedly made at an earlier date . . . . These statutes are unconstitutionally broad as applied to [defendant], because they include a substantial amount of First Amendment protected conduct in their sweep. See, e.g., New York v. Ferber, 458 U.S. 747, 768-770 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)."

Addressing these claims in inverse order, the very cases defendant cites mandate denial of his overbreadth claim. In those cases, the United States Supreme Court "recognized that the overbreadth doctrine is strong medicine' [to be] employed . . . with hesitation, and then only as a last resort.'" New York v. Ferber, supra, 458 US at 769, quoting Broadrick v. Oklahoma, supra, 413 US at 613. While the Broadrick Court acknowledged that "statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn," 413 US at 611, it also recognized that, notwithstanding their First Amendment implications, such statutes are to be upheld if they "represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Id. at 611-12. Here, of course, the State Legislature has made such specific findings, incorporated directly into the Hate Crimes Article, PL 485.00, as well as the Terrorism Article, PL 490.00.

Further, while "claims of facial overbreadth have been entertained in cases involving statutes, which, by their terms, seek to regulate only spoken words,'" Broadrick v. Oklahoma, supra, 413 US at 612, "overbreadth scrutiny has been limited with respect to conduct-related regulation." New York v. Ferber, supra, 458 US at 766, citing Broadrick v. Oklahoma, supra, 413 US 601. As the Broadrick Court held, and the Ferber Court later reiterated through quotation, the "function" of

overbreadth adjudication . . . a limited one at the outset, attenuates as the otherwise unprotected behavior it forbids the State to sanction moves from pure speech' toward conduct and that conduct - even if expressive - falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect - at best a prediction - cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe . . . . To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the [*7]statute's plainly legitimate sweep.

Broadrick v. Oklahoma, supra, 413 US at 615 (emphasis added); New York v. Ferber, supra, 458 US at 770; accord People v. Foley, 94 NY2d 668, 677-78 (2000).

Here, not only has the Legislature made explicit its "considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society," Broadrick v. Oklahoma, supra, 413 US at 611-12, New York State's hate and terrorism statutes also require that defendant engage in conduct, conduct already proscribed by other Penal Law provisions — in this case, criminal possession of weapons, arson and criminal mischief. Defendant's First Amendment concern, as expressed in his conclusory argument, is not so "substantial" as to defeat, on the basis of the "limited" overbreadth doctrine, the State's legislative conclusions and actions. Id. at 611-12, 615.

This Court also rejects defendant's alternative argument that the hate crimes and terrorism statutes violate the First Amendment because they would enhance his sentences "based on statements allegedly made at an earlier date." In Wisconsin v. Mitchell, 508 US 476 (1993), a unanimous Supreme Court rejected defendant's First Amendment and overbreadth challenges to Wisconsin's hate crimes sentence-enhancement statute. Addressing an argument strikingly similar to defendant's current contention, the Court held that "[t]he First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like." Id. at 489. Indeed, the Court continued, it had previously condoned the introduction, at a treason trial, "of conversations that had taken place long prior to the indictment [to establish that defendant's] intent and adherence to the enemy." Id. at 489-90 (internal quotations omitted).

Mitchell further held that the Wisconsin hate crime statute did not violate the First Amendment by punishing expression because, as discussed above regarding Broadrick and Ferber, it involved a statute which instead punished bias-motivated conduct, "bias-inspired conduct . . . thought to inflict greater individual and societal harm." Id. at 486-87. In light of Mitchell, the New York State trial courts that have considered the issue have rejected First Amendment-based challenges to the hate crimes statute, PL 485.05, in decisions leaving no basis on which to reach an opposite result with regard to the terrorism statute, PL 490.25. People v. Ivanov, 23 M3d 1129(A)(Sup. Ct., Kings Co. 2008); People v. McDowd, 3 M3d 380 (Sup. Ct., Nassau Co. 2004), aff'd 22 AD3d 688 (2nd Dept. 2005), lv. den. 6 NY3d 778 (2006); People v. Amadeo, (unreported), 2001 WL 1359091 (Sup. Ct., Queens Co. 2001); see People v. Fox, 17 M3d 281 (Sup. Ct., Kings Co. 2007)(rejecting in dicta First Amendment argument not raised by defense).

Accordingly, the Court concludes, as an alternative basis in denying defendant's motion, that defendant did not meet his heavy burden of establishing beyond a reasonable doubt, People v. Tichnor, supra, 89 NY2d at 773, that the statutes defining the hate or terrorism crimes are unconstitutionally broad or impermissibly infringe upon the First Amendment.

The Court likewise concludes that, on the merits, defendant's vagueness challenges must be rejected as well. A void-for-vagueness challenge under either the State or Federal Constitution is adjudicated by the same two-prong test: "First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or [*8]encourage arbitrary and discriminatory enforcement." People v. Bright, supra, 71 NY2d at 382 (citations omitted); accord People v. Stuart, supra, 100 NY2d at 420-21 (first prong requires that statute give person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, while second mandates clear standards for enforcement so that police do not apply statute on an ad hoc and subjective basis); People v. Nelson, 69 NY2d 302, 307 (1987); People v. Mojica, 62 AD3d 100 (2nd Dept.), lv. den. 12 NY3d 856 (2009).

In his initial motion papers, defendant devoted little attention to his vagueness challenge to the PL 485.05 hate crimes statute (Defense Memorandum p. 16), repeating his claim that the People failed to allege "any" connection between defendant's "alleged statements about Jews and the [weapons] crimes charged" — an argument the Court has addressed and rejected ante, in connection with his claims concerning the sufficiency of the indictment and evidence before the Grand Jury — and alleging in conclusory fashion that the statute violates the two prongs outlined in Bright and Stuart. But after the People responded with contrary authority — a string of cases uniformly rejecting vagueness challenges to New York's hate crimes statute — defendant did address that more relevant caselaw (Defense Reply pp. 10-12). The Court nevertheless finds defendant's belated attempt to distinguish those cases unconvincing.

As noted, the courts that have to date examined the constitutionality of the hate crimes statute have rejected the void-for-vagueness challenges mounted against it. People v. Ivanov, supra, 23 M3d 1129(A); People v. Fox, supra, 17 M3d 281; People v. Amadeo, supra, 2001 WL 1359091; People v. Diaz, 188 M2d 341 (Sup. Ct., NY Co. 2001); see People v. McDowd, supra, 3 M3d 380 (rejecting First Amendment challenge).

As the Diaz Court explained 11 years ago regarding the first vagueness analysis prong, the "language of [the Hate Crimes] Act is clear and can be reasonably understood by all citizens to prohibit certain kinds of attacks made against others who have been selected by the offender because of a perception as to the victim's special vulnerability, appearance, or background . . . . [I]t is impossible to imagine that any person in our community would not understand the plain meaning of this law and the ultimate penalties now consequent to putting hateful words and thought into action. The law clearly delineates specific conduct easily avoided by the innocent minded." People v. Diaz, supra,188 M2d at 343-44. As to the second prong, the Diaz Court:

also f[ound] that the language of the statute does not lend itself to arbitrary and discriminatory enforcement . . . . [E]nforcement of these sections by the police is not likely to be expected. In fact, the provisions of these sections apply only when the defendant has already committed one of the underlying crimes specified in this section. Nothing in the statute changes the well-established requirement that the police must have probable cause before arresting an offender for the commission of the underlying specified crime. It is really irrelevant to the making of an arrest that the specified crime will in the future be elevated as a hate crime [which is then subject to a Grand Jury and judicial sufficiency determination] . . . . Thus, the law provides objective criteria which must be observed throughout the accusatory process and in no way provides for enforcement according to the subjective conclusions of the complainant, police or prosecutor . . . .

Id. at 345-46.

In his reply papers, defendant argues that the cases collected by the People are distinguishable in that they involved actual injury to persons or damage to property, while he is accused only of an [*9]"inchoate" conspiracy hate crime. Having included conspiracies to commit the offenses designated in PL 485.05(3) as "specified offense[s]" subject to hate crimes enhancement, the Legislature apparently found no meaningful distinction. Nor does this Court. While defendant argues that, "without any actual conduct, it is next to impossible for courts, juries, or police officers to determine whether the charged inchoate conduct, had it actually occurred, would have been committed with the requisite animus" (Defense Reply, p. 11), police officers have little to add after their initial determination that probable cause establishes defendant's commission of an underlying "specified offense," People v. Diaz, supra, 188 M2d at 345-46, and courts and juries regularly adjudicate issues of mental state.[FN3] Further, however phrased in the People's Response, defendant is accused in the hate crimes count of a series of completed, concrete acts far beyond what the defense describes (Defense Reply, p. 12) as "random comments and vague speculation." Instead, as outlined in the indictment, the overt acts alleged in support of the hate crimes conspiracy count include defendant's acquisition and possession of multiple handguns and an inert grenade. Accordingly, the conspiracy count was based on far more than diffuse talk or expression and, on the merits of the issue, this Court concludes that the statute, as applied or facially, is not unconstitutionally vague. People v. Ivanov, supra, 23 M3d 1129(A); People v. Fox, supra, 17 M3d at 290-91.

The Court also rejects defendant's vagueness challenge to the terrorism statute, again concluding that he has failed to properly raise the issue, CPLR 1012(b)(1), (3), and that, in any event, his challenge lacks merit.

Defendant centers his argument concerning the first prong of vagueness analysis, whether the statute provides sufficient notice of what is prohibited, on the phrase "inten[t] to intimidate or coerce a civilian population." PL 490.25(1). His preliminary claim, that the prosecution "does not identify any civilian population' that [defendant] allegedly intended to intimidate" (Defense Memorandum p. 11) is simply incorrect, as the indictment makes clear, and the People have expressly stated (see, e.g., People's Memorandum pp. 38-39), that the "civilian population" at issue includes all Jews, or all non-Muslims, in New York City.

Defendant's primary first-prong argument seemingly includes two related sub-arguments, that the phrase "civilian population" is unconstitutionally vague, and that it cannot apply to less than an entire population of all citizens. He begins by proposing the substitution of particular synonyms from a particular dictionary to translate the statutory phrase to acting "with the conscious, political objective or purpose to cause fear or to compel some action by causing fear in the general populace on a large scale, such as a country, state or city" (Defense Memorandum p. 12). The Court finds this exercise wholly unnecessary. The words of the statute are plain, and "words of ordinary import are to be construed according to their ordinary and popular significance, and are to be given their ordinary and usual meaning." McKinney's, Statutes §232. Dictionary definitions "are not controlling," and should be employed only "where the word or term is not defined in the statute and [*10]legislative history throws no light on the question of legislative intent." McKinney's, Statutes §234. Here, there is not only plain meaning, but evidence of legislative history and intent, and also judicial construction arising from an appeal from a conviction under the terrorism statute, People v. Morales, supra, 86 AD3d 147.

According to defendant (Defense Memorandum p. 12), the Morales Court rejected the People's argument that "individuals of a particular ethnicity may constitute a civilian population.'" In fact, as discussed ante at 5-7, the Morales Court's ruling was a narrower sufficiency ruling: that even assuming the Mexican-American community of the St. James Park area of Manhattan did constitute such a "population," there was insufficient proof that the charged shooting was committed with the intent to intimidate or coerce that populace, notwithstanding the commission of unrelated crimes against local non-gang community members. Id. at 153-55. Further, while the Morales Court expressly declined to rule on the defendant's vagueness challenge, id. at 161, fn. 15, its remaining language supports the People's position that members of a particular religion in an urban area may constitute a "population." Specifically, that Court held that PL 490.25(1) requires the "intention to create a pervasively terrorizing effect on people living in a given area, directed either to all residents of the area or to all residents of the area who are members of some broadly defined class, such as a gender, race, nationality, ethnicity, or religion." Id. at 157.

The legislative history of PL 490.25 also supports the application of the statute to groups smaller than the general population. As noted ante, the Legislative Findings cite shootings which resulted in only one, or a half-dozen, fatalities. PL 490.00; see People v. Morales, supra, 86 AD3d at 156-57. More importantly, the Morales Court noted that New York's terrorism statute was modeled after comparable federal statutes, id. at 158-60, and a review of those statutes and the cases interpreting them reflect neither vagueness concerns nor applications limited to entire populations.

Defendant correctly cites four cases in which the identical "intent to intimidate or coerce a civilian population" language of the federal Anti-Terrorism Act, 18 USC 2331, was construed to include the citizens of an entire country, Israel. See, e.g., Boim v. Holy Land Foundation, 549 F3d 685 (7th Cir. 2008); Gilmore v. Palestinian Self-Government Authority, 422 F Supp 2d 96 (D. D.C. 2006). Critically, however, none of those cases held that a "civilian population" must constitute the citizenry of an entire country. In fact, the Morales Court itself cited Boim for the proposition that the phrase, " to intimidate or coerce a civilian population' under federal terrorism laws . . . refer[s] to attempts to intimidate the general public in a given area, or a broad category of the general public in a given area . . . ." 86 AD3d at 160 (emphasis added). In addition, the Morales Court also cited United States v. Jordi, 418 F3d 1212 (11th Cir.), cert. den. 546 US 1067 (2005), in which a federal "inten[t] . . . to intimidate or coerce a civilian population" federal Sentencing Guideline enhancement was applied to a defendant convicted of bombing abortion clinics, 86 AD3d at 160-61 — again, hardly the entire civilian population of the area.

Concluding its review of relevant federal authority, the Morales Court determined that the legislative history of the similar federal statutes indicates that "[t]he term civilian population' includes a general population as well as other specific identifiable segments of society such as the membership of a religious faith . . . ." Id. at 159 (emphasis added; citations and internal quotations omitted). Notably, despite his federal research, defendant has cited no cases in which the similar federal statutes have been challenged as, or declared, void for vagueness.

Finally, in their response to defendant's motion (People's Memorandum pp. 36-38), the [*11]People survey other state terrorism statutes to establish that those states specify "a" civilian population when they intend a subset of the general population, and otherwise use the term, "the" civilian population. Clearly, the New York Legislature had choices, and its plain language choice regarding PL 490.25 should be afforded a plain language meaning.

Addressing the second vagueness prong, defendant repeats his claim that the People have established no nexus between his statements regarding attacks on houses of worship and his acquisition of weapons from the second undercover officer. Defendant then argues that such a lack of nexus establishes that the terrorism statute is vague because it provides no guidance to defendants, police officers, prosecutors and juries in determining when his conduct might be elevated by the terrorism statute. As discussed ante, the indictment and proof before the Grand Jury was in fact sufficient to establish such a nexus. Further, as discussed in the context of defendant's vagueness challenge to the hate crimes statute, defendant could not be charged with or convicted of a crime of terrorism unless the officer, prosecutor, Grand Jury and trial jury found sufficient cause to believe he had committed an underlying enumerated offense. See, e.g., People v. Diaz, supra, 188 M2d at 345-46. Therefore, the requirement that a defendant commit a predicate specified offense, coupled with the plain language of the terrorism statute itself, guards against over-charging and over-reaching of the terrorism statute.

In short, the terrorism statute leaves no ambiguity in what is prohibited or in the standards for enforcement. The statute "clearly delineates specific conduct easily avoided by the innocent-minded. It should present no difficulty for a citizen to comprehend that he must refrain from" engaging in a specified offense with the intent to intimidate or coerce a civilian population, People v. Nelson, supra, 69 NY2d at 307, and given the necessity of a predicate specified offense, law enforcement cannot act capriciously in charging a crime of terrorism. Accordingly, defendant has not carried his heavy burden of proving the statute's unconstitutionality, and the motion to dismiss is denied.

Discovery and Bill of Particulars

Defendant's motion for court-ordered discovery and a bill of particulars is granted in part. Initially, the Court notes that the extensive discovery already provided to defendant includes the audio recordings, which will form the core of the People's case at trial and which are so voluminous that they required months of defense review before defendant could file his omnibus motion. Additional discovery has since been provided by the People.

The request for a more detailed bill of particulars, and for additional discovery pursuant to CPL 240.20(1)(i) concerning the dates, times and places of the alleged crimes and defendant's arrest, is denied. The bill of particulars supplied by the People, as supplemented by the indictment, the disclosed recordings and summaries of other conversations between defendant and UC 242, and the People's Affirmation in response to defendant's motion, provides ample information concerning the theory of the prosecution and the particulars of the crime and arrest. CPL 200.95; People v. Davis, 41 NY2d 678, 679-80 (1977).

The motion for written, recorded and oral statements of defendant to a public servant or person acting at his or her direction, other than those made in the course of a criminal transaction, pursuant to CPL 240.20(1)(a), and for recordings the People intend to introduce at trial, whether or not made in the course of the criminal transaction, pursuant to CPL 240.20(1)(g), is granted as to any statements and recordings not already been provided by the People. As defendant argues, CPL [*12]240.20(1)(a) mandates disclosure of all statements he made to a public servant or agent thereof other than those made in the course of a criminal transaction, whether or not the People intend to introduce those statements at trial. People v. Combest, 4 NY3d 341, 347, rearg. disms'd 4 NY3d 859 (2005); People v. Fields, 258 AD2d 808, 809 (3rd Dept. 1999). However, as the People have affirmed that they have already provided all audio recordings of defendant, and summaries of unrecorded statements, this discovery category may be academic.

The motion to compel the disclosure of reports or documents arising from tests, examinations or experiments pursuant to CPL 240.20(1)(c), photographs or drawings pursuant to CPL 240.20(1)(d), and property obtained from defendant pursuant to CPL 240.20(1)(f), is granted to the extent provided by the People. The People, through their Voluntary Disclosure Form, Affirmation in Response to defendant's omnibus motion, and statements at the March 13, 2012, oral argument, have represented that such materials have already been provided to the defense or have been made available for inspection at the District Attorney's Office.

The sharpest dispute between the parties involves the disclosure of assertedly exculpatory information pursuant to Brady v. Maryland, 373 US 83 (1979), and its progeny. See also CPL 240.20(1)(h). Much of that dispute, in turn, centers upon whether October 18, 2010, represents, as the People affirm, the first meeting between defendant and UC 242, or whether they actually met in the spring of 2010, as defense counsel asserts, giving rise to defendant's claims that he is entitled to a host of additional recordings and materials regarding the process by which he was selected and cultivated as a target of the investigation which led to the current charges. Having closely examined the transcripts submitted by the parties, a copy of the recording created by UC 242, defendant's letter submission dated April 2, 2012, and the People's responsive submission dated April 16, 2012, the Court concludes that October 18, 2010, was in fact the first meeting between the two men and, therefore, that no such Brady material exists.

First, in their letter submission, the People explain that UC 242 fortuitously encountered defendant when the undercover was taping a third party acquaintance of defendant — to whom defendant refers only as "male speaker," but whom the People identify as defendant's own friend Wael, or "Will," Goda.[FN4] In fact, the tape of the conversation (01:22:32) reveals that when UC 242 discussed Goda's attendance at an "Al-Awda" meeting, the undercover told Goda, who was unsure whether he should attend, that the undercover would "call Dima and just be like I'm going to bring a friend, Wael, Bill knows him," to which Goda responds, "She knows me." The People also point to discovery provided to the defense concerning the October 18, 2010, meeting, in which the police correctly noted Wael Goda's name but memorialized defendant's name as "Ahmet Ferhat," because they were not yet aware of defendant's true identity.

Second, and most telling, the tape of the October 18th meeting repeatedly establishes that UC 242 and defendant had not previously met. While the Court cannot decipher every word proposed in the People's transcript, it is able to discern far more than that proposed in defendant's transcript [*13]— which itself strongly suggests an initial meeting. Specifically, when the two men meet, defendant introduces himself as "Ahmed" (00:03:44).[FN5] Defendant soon says to UC 242, "You Turkish, right?" to which UC 242 responds, "Yeah, I'm Turkish." (00:04:28). UC 242 later states, "So I hear you're Algerian" (00:06:36), a comment defendant concedes. Once the men are in the library, defendant whispers his telephone number to UC 242 (00:34:06), who asks, "Ahmed, right?" (00:34:21). Defendant responds, "What's your name again?" to which UC 242 answers "Ilter." Defendant repeats, "Ilter?" and UC 242 responds, "Yeah." Defendant concedes the audibility of that exchange, beginning, "Ilter?" Once UC 242 entered defendant's number in his cell phone, UC 242 comments, "Now I have two or three Ahmed's" and that he would "put [defendant's number] down as . . . Algeria. The other one is Turkish."[FN6]

Twenty minutes later (00:53:15), UC 242 asks defendant, "You live in Queens too?" to which defendant replies, "Yeah, Whitestone. Not too far from here." In an exchange quoted in defendant's transcript (01:23:47), defendant asks UC 242, "Where you live?" to which the undercover answers, "I live in Brighton Beach." In another exchange acknowledged by the defense (1:30:52), defendant asks UC 242, "Are you working now?" and when the undercover responds that he works three days per week in Allentown, Pennsylvania, defendant asks, "Yeah? Doing what?" UC 242 responds, "I take care of, the guy that I work for, his business and his house," prompting defendant to ask, "What, you maintain it?" After UC 242 describes his responsibilities, defendant reveals that he used to live in Colorado. The defense also acknowledges that half an hour later, as the men board a train, defendant remarks, "I can't believe I'm saying it. It feels good to be on a train." (2:00:26). UC 242 asks defendant, You take cabs?" to which defendant responds, "I take cabs everywhere, man." These exchanges, the men's names and countries of birth, defendant's telephone number, the neighborhoods in which the men reside, the undercover officer's purported employment, defendant's penchant for cabs — much of which is conceded by the defense — bespeak an initial encounter, not a conversation between two friends of half a year.

Finally, though unnecessary to the Court's conclusion, defendant himself twice admitted to a third party, in telephone calls recorded from Rikers Island, where he was warned that calls may be monitored and recorded, that he first met the undercover officer in October, 2010. While, faced with defendant's recorded prison calls, the defense now argues that defendant may have met the undercover the preceding month, September, defendant clearly referred to the October library meeting. Therefore, defendant's claim to expanded Brady material, based upon the months preceding the undercover's first encounter with him in the library, is baseless.

Two of defendant's remaining Brady demands, however, are meritorious. First, the People are directed to disclose any information in their possession, and to obtain from the New York City Police Department and the Joint Terrorist Task Force, any information which would cast doubt upon [*14]UC 242's credibility. The People have already stated that they will obtain and disclose any such information, and they must, as Brady obligations extend to all persons "acting on the People's behalf." United States v. Stewart, 433 F3d 273, 298-99 (2nd Cir. 2006), quoting Kyles v. Whitley, 514 US 419, 437 (1995)(prosecutor has duty to learn of exculpatory information known to others acting on government's behalf in case, including police); People v. Wright, 86 NY2d 591, 598 (1995)(prosecutor obligated to discover complainant's status as police informant); People v. Novoa, 70 NY2d 490, 498 (1987)(New York County prosecutor obligated to discover its witness' cooperation agreement with Special Narcotics prosecutor).

Second, defendant is entitled to copies of his own psychiatric records subpoenaed by the People. While the People have stated in their letter submission that they will move to preclude such evidence, defendant has filed belated CPL 250.10 notice of his intent to introduce psychiatric evidence in support of his entrapment and "bad faith prosecution" (Defense Reply p. 17) defenses. In order to establish the affirmative defense of entrapment, defendant must prove that he was encouraged or induced to commit the offense by a public servant or his agent seeking to obtain evidence against defendant for the purpose of a criminal prosecution, and that the methods used by the servant or agent created "a substantial risk that the offense would be committed by a person not otherwise disposed to commit it." PL 40.05; see People v. Brown, 82 NY2d 869 (1993); People v. Butts, 72 NY2d 746 (1988). The caselaw makes clear that defendant's mental state and intent are relevant to such a defense. People v. Minor, 69 NY2d 779, 780 (1987)(defendant raising entrapment may introduce statements relevant to his "state of mind"); People v. Calvano, 30 NY2d 199, 205 (1972)(defendant raising entrapment may "prove [the] absence of the criminal intent ordinarily inferrable from the admitted acts of commission"); People v. Torres, 185 AD2d 257 (2nd Dept.), lv. den. 80 NY2d 977 (1992)("[P]redisposition refers to the state of mind a of a defendant before government agents make any suggestion that he should commit a crime"); accord Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law 40.05, at 10 (2009)("entrapment . . . disclaims a criminal intent to commit an offense").

Therefore, without intimating whether "bad faith prosecution" constitutes a cognizable trial defense under New York law, whether defendant's proposed psychiatric evidence might be precluded as untimely or otherwise, and where the precise contours of any admissible psychiatric evidence may lie, the Court concludes that the psychiatric and related records subpoeaned by the People — but not yet inspected by them — may prove exculpatory to defendant and relevant to both parties. Accordingly, the People are granted access to defendant's subpoenaed prison health records, as well as the mental health-related 911 calls and aided reports involving defendant, and are directed to make those records available to defendant.

Motion to Controvert the Search Warrants and Suppression Issues

The motions to controvert two search warrants issued in this case are denied. Because those warrants were previously reviewed by the issuing Judges, Hon. Shawndya L. Simpson and Hon. Melissa C. Jackson, they are entitled to a presumption of validity. People v. Castillo, 80 NY2d 578, 585 (1992); People v. Gramson, 50 AD3d 294 (1st Dept. 2008); People v. Ortiz, 234 AD2d 74, 75-76 (1st Dept. 1996). Although defendant was provided copies of the warrants, his motion to controvert consists of a quick boilerplate list of potential warrant defects. That list of conclusory allegations is not sufficient to overcome the presumption of validity.

In any event, an examination of the affidavits submitted in support of the warrants establishes [*15]that the warrants were properly issued. Defendant has not borne his burden of showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavits. Franks v. Delaware, 438 US 154, 155-56, 171 (1978); People v. Tambe, 71 NY2d 492, 504 (1988); People v. Alfinito, 16 NY2d 181, 186 (1965). The affidavits submitted in support of the warrants provided detailed and ample cause, based upon personal knowledge, to conclude that a search of defendant's apartment and the cellular telephones recovered pursuant to that search, as well as the cell phones recovered from defendant himself upon arrest, would yield evidence of the outlined conspiracy, terrorism and narcotics crimes. People v. Tambe, 71 NY2d 492, 503-04 (1988); People v. Robinson, 68 NY2d 541, 551-52 (1986); People v. Walker, 285 AD2d 660, 662 (3rd Dept.), lv. den. 97 NY2d 659 (2001); People v. Ortiz, 256 AD2d 424, 425 (2d Dept. 1998), lv. den. 95 NY2d 801 (2000). The informants who provided the information underlying the warrant applications, the two undercover officers, as well as the affiant himself, are all New York City Police Department detectives, and as such are presumptively reliable. People v. Rivenburgh, 1 AD3d 696, 699 (3rd Dept.), lv. den. 1 NY3d 579 (2003); People v. Telesco, 207 AD2d 920 (2nd Dept. 1994); People v. Londono, 148 AD2d 753 (2nd Dept. 1989). Accordingly, both prongs of the Aguilar/Spinelli test were satisfied and defendant's request for a Darden hearing is meritless.

The warrants described the locations to be searched with sufficient particularity. People v. Nieves, 36 NY2d 396, 401 (1975); People v. Gramson, 50 AD3d 294 (1st Dept.), lv. den. 11 NY3d 832 (2008)(place only); People v. Lawrence, 166 AD2d 164 (1st Dept. 1990), lv. den. 77 NY2d 879 (1991). Likewise, the items to be seized were described with sufficient particularity, and the list of those items was not overbroad. People v. Armstrong, 267 AD2d 120 (1st Dept. 1999), lv. den. 94 NY2d 945 (2000). Finally, defendant's claims concerning the manner in which the warrant was executed are unsupported by evidence and without merit. Town of East Hampton v. Omabuild USA No. 1, Inc., 215 AD2d 746, 748 (2nd Dept. 1995); People v. Cotroneo, 199 AD2d 670 (3rd Dept. 1993), lv. den. 83 NY2d 851 (1994); People v. Morgan, 162 AD2d 723 (2nd Dept. 1990); People v. Rhoades, 126 AD2d 774 (3rd Dept.), lv. den. 69 NY2d 1008 (1987).

The motion to suppress physical evidence beyond that recovered pursuant to the search warrants is denied, since defendant has neither identified any such items nor presented any factual allegations sufficient to support such relief. People v. Burton, 6 NY3d 584 (2006); People v. Mendoza, 82 NY2d 415 (1993).

The motion to suppress evidence concerning statements is denied as academic. The People have not served CPL 710.30 notice of their intent to introduce any post-arrest statements allegedly made by defendant.

The motion to suppress identification evidence is denied. While the People rely upon UC 242's eight-month relationship with defendant in arguing that "identity is not in issue" and that a suppression hearing therefore is not required pursuant to People v. Rodriguez, 79 NY2d 445 (1992) (People's Affirmation, p. 8), the noticed photographic identification by UC 242 actually occurred on October 21, 2010, only three days after the men's initial October 18, 2010, meeting. However, given the duration and nature of that October 18th meeting — a three and three quarter hour encounter during which the men traveled, ate together and conversed at length under relaxed circumstances — the Court concludes that UC 242's October 21, 2010, familiarity with defendant still rendered the undercover's identification impervious to suggestion. People v. Breland, 83 NY2d 286, 295 (1994); [*16]People v. Rodriguez, supra, 79 NY2d 445; People v. Tas, 51 NY2d 915 (1980). Nor could that photographic identification possibly affect the undercover officer's ability to identify defendant at trial.

Defendant's motion to preclude the offering of evidence not properly noticed is denied as premature.

The Sandoval and Ventimiglia motions will be heard immediately before trial.

This shall constitute the decision and order of the Court.

Dated: New York, New York

June 25, 2012

__________________________________

J.S.C. Footnotes

Footnote 1:While, by contrast, the object crimes of the hate crime conspiracy alleged in the second count, criminal mischief in the first degree and arson in the third degree, are not violent felony offenses, they are included in the "specified offense" section of the hate crimes statute, PL 485.05(3).

Footnote 2:The Jewish population of New York City, the largest Jewish community outside of Israel, ranges between one and two million persons, depending on the year of measurement and whether the counties immediately adjacent to the five boroughs are included.. See, e.g., http://www.jewishdata-bank.org/ Reports/ Jewish_ Population _in_the_ United_States_2010.pdf and http://en.Wikipedia.org/ wiki/Jewish_population_by_ cities_ and_city_areas. When Ferhani broadened his target to all non-Muslims, his attacks potentially included all but the roughly 600,000 Muslims in a city of about eight million persons. See http://www.nycreligion.info/?p=598. Manhattan alone contains roughly 1.7 million persons, about 500,000 of whom are Jewish. See http://www.city-data.com/ city/Manhattan-New-York.html and http://www.jewishdatabank.org/study.asp?sid =90124 & tp=2, respectively.

Footnote 3:In considering "the facts of the particular case" in accordance with defendant's "as applied" challenge, People v. Ivanov, supra, 23 M3d 1129(A), citing People v. Stuart, supra, 100 NY2d at 420, the Court notes that the jury will have a full opportunity to consider and weigh this defendant's repeated alleged statements concerning his motivation and animus against Jews and other non-Muslims.

Footnote 4:Apparently defendant sees no inconsistency in claiming that the topics the three men discussed during their prolonged October 18th meeting establish that he had a prior relationship with the undercover, while maintaining that he remains unaware of the name or identity of the third participant, Mr. Goda.

Footnote 5:The Court could not discern what the People describe as UC 242's initial introduction of himself as "Ilter."

Footnote 6:Defendant also concedes the audibility of part of this exchange. The Court could not discern the next exchange alleged by the People, defendant's purported comment that he was "heading out. Good to meet you." (00:40:24).