In a fairly atypical prosecution by the Manhattan District Attorney’s Office, Cyrus Vance, Jr. and Company are spearheading a case in Manhattan Criminal Court against alleged “lone wolf” terrorist, Jose Pimentel. It is alleged that Pimentel was a step or two away from detonating a shrapnel filled pipe bomb somewhere in New York City in retaliation against the military’s success against certain Muslim extremists. Pimentel faces up to twenty-five years in state prison if convicted not of the terrorism related offense that has galvanized the media, but for possessing an explosive type weapon.
According to reports, The New York City Police Department had been watching Pimentel for sometime after they learned of his alleged terroristic desires. In fact, it appears that Pimentel was the subject of NYPD scrutiny for well north of a year or two. While the story behind the investigation and ultimate arrest of Pimentel is fascinating, this blog entry will not address that investigation. Instead, the focus of this article is dissecting the offenses for which a Grand Jury may indict the accused.
Conspiracy in the Fourth Degree: NY PL 105.10(1) An “E” felony, Conspiracy in the Fourth Degree, pursuant to New York Penal Law 105.10(1), is punishable by up to one and one third to four years in state prison. The basic premise of this crime is that a person is guilty of this crime if he or she has the intent that an “B” or “C” felony transpire or take place. Assuming this intent exists, the accused must also agree with at least one other person to engage or cause the performance of the intended act.
Applying the statutory language to the allegations against Pimentel, there are critical factors that one must first understand. First, Mr. Pimentel is also charged with violating New York Penal Law 265.04(1), Criminal Possession of a Weapon in the First Degree. Although this offense will be addressed further below, NY PL 265.04 satisfies one element of the Conspiracy charge as it is a “B” felony.
Another essential element to Conspiracy is that the accused not act alone. Although reports describe Pimentel as a “lone wolf,” he is still charged with Conspiracy. Practically speaking, how can Pimentel be a “lone wolf” yet also be seeking to “join forces” with other co-conspirators? To answer this question, one must dig a little deeper.
According to New York Penal Law 105.30, it is no defense to a prosecution for Conspiracy that due to legal incapacity, unawareness, or to other factors precluding the mental state required for the commission of Conspiracy or the actual crime, the alleged co-conspirator or conspirators could not be guilty of the Conspiracy or the intended crime. That made no sense, did it? Let’s try that again below…
In non-legal jargon, it makes no difference if you sought to detonate a bomb, as a conspirator with another person, but ultimately did so alone because there was no other party that shared your intent or desires. You could still be guilty of Conspiracy if you believed you had co-conspirators in your plot. It would make no difference in the eyes of New York State whether your co-conspirators had no intent in following through or were undercover police officers. In fact, even if your alleged co-conspirators were acquitted at trial, it would still be possible for a jury to unilaterally convict you of Conspiracy.
Although the Conspiracy charge against Pimentel is certainly interesting in terms of how the crime is prosecuted in this particular scenario, it is by no means close to the most serious offense for which the defendant faces.
Soliciting Providing Support for an Act of Terrorism in the Second Degree: NY PL 490.10(1) A “D” felony, Soliciting or Providing Support for an Act of Terrorism in the Second Degree, pursuant to New York Penal Law 490.10(1), is punishable by up to seven years in state prison. Pimentel would be guilty of this crime if he intended that material support or resources would be used to plan, prepare, carry our or aid in either an act of terrorism or the concealment of the same. Additionally Pimentel must have raised, solicited, collected or provided material support or resources.
To better understand this statute, one must review all of the underlying definitions of this crime. One of those terms is “act of terrorism.” An “act of terrorism” includes any act that is intended to intimidate or coerce a civilian population. Certainly, if true, prosecutors could make a powerful argument that detonating a pipe bomb filled with shrapnel in New York City would be an act of intimidation.
A second legal term, “material support or resources,” also needs defining. This term is extremely broad and includes, but is not limited to, weapons, lethal substances and explosives.
Again, in non-legal jargon, in order for the Manhattan District Attorney’s Office to successfully prosecute Pimentel they would have to prove beyond a reasonable doubt that the defendant had the intent that a weapon or explosive be used to carry out an act to intimidate a civilian population and that Pimentel collected or provided these explosives or weapons in order to do so.
Criminal Possession of a Weapon in the First Degree: NY PL 265.04(1) Although a crime that has no legal element that involves terrorism, Criminal Possession of a Weapon in the First Degree is the most serious offense facing Pimentel. In fact, should the alleged terrorist be convicted of New York Penal Law 265.04(1), he would face a minimum of five years and maximum of twenty-five years in state prison. It is not unlikely that a judge would sentence Pimentel closer to the latter should he be convicted after trial.
The easiest crime to understand, one is guilty of CPW 1 if one possesses an explosive substance with the intent to use it unlawfully against another person.
As brief and concise as possible, theses are the main charges that prosecutors will likely present to the Grand Jury in the case against Pimentel. Whether there are other crimes, the defendant’s attorney seeks to have his client testify or examined for mental stability, or some other interesting storyline plays out, Vance and his gaggle of prosecutors will have much to chat about beyond ATM machines and steakhouse waiters as they gobble on turkey, stuffing and a sides of cranberry later this week.
To learn more about the crimes listed above, including Criminal Possession of a Weapon, follow the highlighted links to the particular offense or to CrottySaland.Com.
Crotty Saland PC is a New York City criminal defense firm representing those accused of crimes throughout the metropolitan area. The New York criminal lawyers who founded Crotty Saland PC both served as prosecutors under Robert Morgenthau in the Manhattan District Attorney’s Office.