Criminal defense in Yates, Steuben, Ontario, Wayne and Monroe Counties215 Main Street, Penn Yan, NY 14527+1 (315) 575-4205[email protected]
Tom Plan Law, PLLC

A Terrorism Statute, Not a Threats Statute: Penal Law § 490.20 in the Appellate Courts

Thomas Plan · October 2026

New York's crime of making a terroristic threat was enacted shortly after September 11, 2001, as part of Penal Law article 490, and it was written for terrorism. The appellate courts have read it that way. Prosecutors nonetheless reach for it in cases that have nothing to do with terrorism: an angry litigant, a fired custodian, a quarrel at a mosque, a string of Facebook posts. In the appellate decisions since 2017 that reach the sufficiency or weight of the evidence on a § 490.20 count, each has ended in dismissal. These charges fail on two elements: terrorist intent and the imminence of the feared harm. The federal true-threats cases add a constitutional floor, but they are not where these cases are won.

The statute's demanding elements

Penal Law § 490.20(1) requires three things. The defendant must act with one of three intents: to "intimidate or coerce a civilian population," to influence the policy of a unit of government by intimidation or coercion, or to affect the conduct of a unit of government by murder, assassination or kidnapping. He must threaten to commit a "specified offense," a category defined in § 490.05(3) that covers most violent felonies. And the threat must "thereby cause[] a reasonable expectation or fear of the imminent commission" of that offense. Subdivision (2) removes three defenses: that the defendant lacked the intent or capability to carry out the threat, or that the threat was not made to its subject. The offense is a class D violent felony (Penal Law § 70.02(1)(c)). Because subdivision (2) takes capability and follow-through off the table, litigation centers on intent and imminence.

Morales: terrorism has "a unique meaning"

The Court of Appeals set the interpretive frame in People v Morales, 20 NY3d 240 (2012). That case arose under the companion crime of terrorism (Penal Law § 490.25): a Bronx gang member fired at a rival during a christening party and killed a ten-year-old girl. A unanimous Court held the evidence insufficient for terrorism. Article 490's definitions were drawn from federal antiterrorism law, which was never meant to reach ordinary street crime. A shooting aimed at identified gang enemies, the Court held, is not an intent to intimidate a civilian population. The Court warned that the concept of terrorism "risk[s] being trivialized" if the label is applied loosely to acts outside our collective understanding of terrorism. It also ordered a new trial on the remaining counts because of prejudicial spillover from the terrorism theory.

Morales construed § 490.25, but § 490.20 shares its intent language, and the later § 490.20 reversals rely on it.

Personal grievances fail the intent element

The Appellate Divisions have repeatedly held that a threat born of a private grievance is not terrorism. In People v Richardson, 167 AD3d 1064 (3d Dept 2018), a jailed defendant wrote to his estranged wife that he wanted to shoot the Family Court judge in his case. The Third Department reversed on the weight of the evidence and dismissed the indictment. Proof that the defendant "intended to influence a policy of a governmental unit" was "critically missing"; the letters reflected "vented anger."

People v Kaplan, 168 AD3d 1229 (3d Dept 2019), went further. A man refused the return of his property at a sheriff's office said he would "come back and shoot the place down." The Third Department found the evidence legally insufficient. He had tied no demand to any sheriff's policy and was simply venting. Earlier affirmances, the court noted, involved threats linked to demands on government.

The civilian-population prong is no easier for the People. In People v DeBlasio, 190 AD3d 595 (1st Dept 2021), the defendant, after an altercation at his mosque, threatened to shoot "you guys," meaning worshippers he resented. The First Department reversed and dismissed: the threat "mentioned no group or population" and grew out of "a personal dispute." Treating it as a terroristic threat "would trivialize the definition of terrorism." The Second Department reached the same result in a juvenile case in which a student, after "a little argument" in class, said he would get someone to "shoot up the school"; there was "no evidence of an intent . . . to intimidate a civilian population" (Matter of Jaydin R., 190 AD3d 745, 2d Dept 2021).

Conditional or stale threats fail imminence

The second line of reversals concerns the requirement of a reasonable fear of imminent harm. In People v Hulsen, 150 AD3d 1261 (2d Dept 2017), a school custodian told a teacher to stay home "the day they fire me" because he would "Columbine" the school. The Second Department affirmed dismissal of the indictment for legally insufficient grand jury evidence. The teacher did not believe harm was imminent and delayed reporting, and the threat depended on a firing that no evidence suggested was coming. In People v Santiago (3d Dept, June 30, 2022, No. 112864), a caller told a corrections investigator he would "blow an officer's head off." The conviction fell as against the weight of the evidence because no witness described a fear of imminent harm and officials did not promptly warn the facility.

The prosecution's strongest ground is narrower. In People v Allen, 66 Misc 3d 913 (Orange County Ct 2020), a trial court sustained an indictment over a public Snapchat post that showed two guns and promised to "shoot it up" at a homecoming game the next day. The audience was public, the target was an open group, and the date was fixed. People v Aponte, 248 AD3d 938 (2d Dept 2026), which affirmed convictions over threatening letters sent to a court and a prosecutor, did not discuss the sufficiency of the § 490.20 counts.

Two dismissals from our own practice

The same two weaknesses decided two Steuben County indictments this office defended in 2025. The clients are identified by initials only, and what follows is limited to what our results page already reports.

In People v. J.W., making a terroristic threat was the sole count of the indictment. The case did not begin with a 911 call or a frightened listener. It began with a state intelligence officer, who opened an investigation into Facebook posts that referred to local officials. Before the criminal case reached County Court, law enforcement petitioned for an extreme risk protection order, and we contested that petition at an evidentiary hearing. Cross-examination of the State's witnesses there helped build the defense. A written motion to dismiss followed, and in May 2025 the County Court dismissed the indictment. Posts about local government, read by an analyst rather than received by anyone in fear, sit squarely within Richardson and Kaplan: anger at officials is not an effort to coerce a unit of government, and a reader at a desk is not a person who expects imminent violence.

In People v. D.S., the client was also indicted for making a terroristic threat. On a written motion, the County Court dismissed the felony in April 2025, agreeing that the evidence before the grand jury did not make out the offense. The case then resolved with a plea to misdemeanor aggravated harassment, a charge that does not require terrorist intent.

Neither result came at trial. Both came from reading the grand jury evidence against the statute's elements. In J.W., the groundwork was laid in the civil proceeding, where the State's witnesses first testified under oath.

The federal true-threats floor

The First Amendment protects threatening speech unless it is a "true threat." Political hyperbole is not one (Watts v United States, 394 US 705, 1969). True threats are serious expressions of intent to commit unlawful violence against a person or group, and the speaker need not intend to carry them out (Virginia v Black, 538 US 343, 2003). A purely negligence standard does not suffice for federal threat prosecutions (Elonis v United States, 575 US 723, 2015). Most recently, the First Amendment requires at least recklessness: the State must show that the defendant "consciously disregarded a substantial risk" that his communications "would be viewed as threatening violence" (Counterman v Colorado, 600 US 66, 2023).

Section 490.20 already demands more than that. Its specific terrorist intent sits well above Counterman's recklessness floor, and none of the New York decisions discussed here turned on the First Amendment. The federal cases still matter in two ways. Watts supports the argument that angry, conditional or hyperbolic words, including posts about public officials, are not threats at all. And because subdivision (2) excuses any intent to carry out the threat, counsel should insist that jurors find the defendant at least understood his words as threatening.

Practical consequences

These are pretrial arguments. Hulsen, and both of our 2025 dismissals, show that a motion to inspect the grand jury minutes and dismiss for legally insufficient evidence (CPL 210.20(1)(b); 210.30) can end a § 490.20 prosecution before trial. Grievance-driven threats lack the intent element, and conditional or unreported threats lack imminence.

Defense counsel should also expect a parallel civil proceeding. Under CPLR 6341, police and district attorneys "shall file" an extreme risk protection order application on credible information that a person is likely to cause serious harm, unless they find no probable cause. The ERPO petition can move faster than the criminal case and can result in the surrender of firearms. It is also the first time the State's witnesses must testify and face cross-examination. Statements made there may surface in the criminal case, so the two should be handled together, by the same lawyer, from the start.

This article provides general information, not legal advice. Anyone facing a charge or petition should consult counsel about the facts of the case. Prior results do not guarantee a similar outcome.

Sources