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STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL.

The First Department determined the statute prohibiting criminal possession of a weapon as an act of terrorism was not preempted by federal law and was not unconstitutional:

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Defendant has not met his burden of showing a “clear and unambiguous” congressional intent to preempt state legislation in the field of counterterrorism … . The statute is not expressly preempted by 18 USC § 2338, which states that federal district courts have exclusive jurisdiction over actions brought under 18 USC part I, chapter 113B. Although Penal Law § 490.25(1) uses language substantially identical to the federal definition of “domestic terrorism” (18 USC § 2331[5]), the Penal Law provision is a separate statute limited to the commission of enumerated state offenses.

Defendant also fails to establish implied federal preemption of state counterterrorism laws. Since a local community will typically be the most directly affected by a terrorist attack there … , the “federal interest” in counterterrorism is not “so dominant” as to “preclude” local enforcement of state laws against attempts to commit terrorist attacks … . Moreover, Congress has not enacted “a framework of regulation so pervasive” as to leave “no room for the States to supplement it” … . This is evident from the strong federal policy of cooperating with state and local governments to combat terrorism … .

The statute is not unconstitutionally vague in proscribing the “intent to intimidate or coerce a civilian population” … , in light of the Court of Appeals’ construction of the emphasized phrase in People v Morales (20 NY3d 240, 247-249 [2012]). Defendant’s arguments that the statute is unconstitutionally vague in using the phrase “unit of government” among other terms are likewise unpersuasive … .

We also reject defendant’s challenges to the statute under the Free Speech Clause of the First Amendment and article I, § 8 of the New York Constitution. We are unpersuaded by defendant’s argument that the statute amounts to an impermissible content-based restriction of speech by increasing the felony level and sentencing range imposed on those who commit an enumerated criminal offense with the “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” … . Such heightened punishment for defendant’s admitted intent of, among other things, influencing the United States government’s foreign policy by building and possessing a pipe bomb does not infringe his right to free speech … . Moreover, defendant’s argument that the statute is overbroad in chilling political speech is unavailing, since any overbreadth is not “substantial . . . in relation to the statute’s plainly legitimate sweep” … of prohibiting criminal conduct perpetrated with an intent commonly associated with terrorism … . People v Pimentel, 2017 NY Slip Op 02891, 1st Dept 4-13-17

 

CRIMINAL LAW (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/TERRORISM, CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)/CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM  (STATUTE PROHIBITING CRIMINAL POSSESSION OF A WEAPON AS AN ACT OF TERRORISM NOT PREEMPTED BY FEDERAL LAW AND NOT UNCONSTITUTIONAL)

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