Nassau County Criminal Defendant Motion to Dismiss Indictment Granted - Upheld on Appeal


We live in strange days. This case has to do with comments made in a lunchroom. Without commenting on political correctness or what one can or cannot say in society anymore without fear of arrest, this case is of particular interest because the Defendant was charged with making a terroristic threat (Penal Law § 490.20), a class D felony, based on, among other things, allusions to Columbine. The Defendant (a custodian/janitor) worked at a school in Nassau County and the Nassau County District Attorney's Office charged the Defendant with making a terroristic threat (Penal Law § 490.20) because of the statements made to another teacher. The Nassau County District Attorney's Office took this threat seriously. The case was dismissed after motion practice and this appeal followed.

Of particular importance is the right to a grand jury indictment in New York State. This procedure is to ensure fairness in the criminal justice system, particularly to ensure that the accused in New York has a neutral body of people to ensure that what he or she is accused is criminal and there is enough evidence to move forward prosecuting that serious crime. However, as Sol Wachtler (who became New York State's top judge) said nearly three decades ago, district attorneys now have so much influence on grand juries that "by and large" they could get them to "indict a ham sandwich." Still, there are rules governing grand juries and the sufficiency of grand jury evidence:

"Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether 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 Woodson, 105 AD3d 782, 782 [internal quotation marks omitted]; see People v Mills, 1 NY3d 269, 274-275; People v Flowers, 138 AD3d 1138, 1139). " Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10[1]; see People v Flowers, 138 AD3d at 1139). " In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'" (People v Jessup, 90 AD3d 782, 783, quoting People v Bello, 92 NY2d 523, 526; see People v Wisey, 133 AD3d 799, 800; People v Woodson, 105 AD3d at 783). "The reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference" (People v Bello, 92 NY2d at 526 [internal quotation marks omitted]; see People v Deegan, 69 NY2d 976, 979; People v Woodson, 105 AD3d at 783).

What happened - the defendant was a custodian at a school for more than a decade. He was eating in the school's faculty break room when a teacher entered the room and, allegedly, asked how he was doing after the first week of school. Meticulously missing is the background story between the defendant and this teacher. "According to the grand jury minutes...the defendant allegedly told the teacher that another teacher was on his 'shit list,' and that 'people better stay out of [his] way.' When the teacher told him, among other things, that he should 'try to relax a little bit' and that 'we all have to like work together here,' the defendant allegedly got out of his chair and told the teacher that she 'better be absent the day they fire me because I am going to come in here and Columbine this shit.' He then mimed shooting a gun while imitating gun noises." It is important to note that the grand jury is conducted entirely by the People, the prosecutors, and still "The teacher testified that she did not believe that the defendant's threat of a school shooting was imminent and, therefore, she waited to report the defendant's comment. Moreover, the defendant's alleged threat was expressly conditioned by the phrase, 'the day they fire me.' "

Of particular interest is the reason behind the statute - something that does not seem to contemplate lunchroom dispute:

Penal Law article 490 was enacted shortly after the attacks on September 11, 2001, to ensure that terrorists are prosecuted and punished in state courts with appropriate severity (see People v Morales, 20 NY3d 240, 244). In construing the statute, courts must be cognizant that "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" (id. at 249). Penal Law § 490.20(1) provides, in pertinent part, that "[a] person is guilty of making a terroristic threat when with intent to intimidate . . . a civilian population . . . 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."

Without reaching the sufficiency of the evidence argument, the Second Department finds that "the Supreme Court properly granted that branch of the defendant's omnibus motion which was to dismiss the indictment since the People failed to present legally sufficient evidence that the defendant's comment caused a reasonable expectation or fear of the imminent commission of a specified offense." Id. (citing People v Adams, 54 Misc 3d 234, 236 [Sup Ct, Kings County]). Because of the above qualifying comments by the Defendant, "The People did not present any evidence that the defendant was about to be terminated from his job, or had any reason to believe that he was going to be terminated" and, therefore, the threat did not cause a reasonable expectation of fear of the imminent commission of a specified offense.

The People conduct the grand jury for the purpose of receiving an indictment. As mentioned by the former Chief Judge of the New York Court of Appeals, the process is one-sided. Someone facing a serious requires an attorney. Should you or a loved one need the services of a criminal defense attorney, call the Law Offices of Cory H. Morris (631-450-2515 | 954-998-2918).

The case is People v. Hulsen, 2017 NY Slip Op 04294 (2d Dep't. May 31, 2017).


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