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People choose to renew the application for a proposed amendment

It is the defendant’s argument that the proposed amendment would, indeed, change the theory of the prosecution because the indictment specifies CB as the specific person about whose “race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation” the defendant had formed beliefs or perceptions which allegedly motivated the underlying crime of Criminal Mischief.

Further, the defendant claims that the Sex Crimes statute, Penal Law section 485.05, specifies that the hate crime “must be directed at a person.” Hinged on that ground, the defendant argues that the focus of a hate crime is limited to single, specific individual not a group of individuals unless it is directed at an entity or organization that is homogeneous in nature.

Section 485.05 (1) (b) of the Penal Law provides, in pertinent part:

“A person commits a hate crime when he or she commits a specified offense and intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.”

The court finds that contrary to defendant’s claim, there is nothing in this statute concerning entities or organizations that are purely homogeneous in nature and the defendant has provided no authority for that proposition.

The court notes that both the People and the defendant seem to have misconstrued what the statute requires in order to establish the commission of a Hate Crime.

The identity and number of the person or persons about whom the defendant is claimed to have formed a perception which motivated the alleged underlying crime, in this case, Criminal Mischief, is irrelevant. For example, the painting of the words “Kill Jews and Blacks” on the walls of a subway is clearly a Hate Crime and that offensive conduct is directed at more than one person; it is a Hate Crime even though the specific person or persons about whom the writer had formed a perception that motivated the Criminal Mischief cannot be identified.
The recommended jury instruction for Penal Law section 485.05 makes this clear. It reads:
In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in this case, beyond a reasonable doubt, each of the following three elements: that, on or about 12 March 2004, in the County of Queens, the defendant YM, committed the offense of Criminal Mischief in the fourth degree; that the defendant committed the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the of a person, regardless of whether the belief or perception is correct; and, that the defendant did so intentionally.

The Legislature made it clear in the language of Penal Law section 485.00 that the victim of a hate crime is society as a whole and it is apparently for that reason that the Hate Crime statute does not require specification of any particular person — only “a person.” It is the attribute of the protected class (i.e., sex, race, sexual orientation, etc.), not the name of any particular individual member or members of that class which is of importance.

Accordingly, the simple manner in which to allege a Hate Crime is to set forth the particular attribute of the protected class which is claimed to have motivated the defendant and not name any particular person or persons. The indictment could simply allege that the defendant committed the underlying crime in whole or substantial part because of a belief or perception of the race, or sex, or sexual orientation, or whatever of a person in accordance with People v McDowd. Neither robbery nor burglary was charged.

The court notes that count one of the instant indictment goes beyond what is required. It names a specific individual, CB, as the person about whom the defendant formed a belief or perception which motivated the alleged act of Criminal Mischief. Whether the People can amend that language depends upon whether the proposed amendment is supported by the testimony in the Grand Jury and whether the proposed amendment changes the People’s theory of the case as reflected in the testimony before the Grand Jury in accordance with CPL 200.70 (2).

The court finds that there was sufficient evidence presented before the Grand Jury to support the conclusions that the defendant damaged property, that CB was the lawful custodian of that property, that the damage consisted of the writing of “nigger”, “fuck” and “pussi” on the wall in the female bathroom on the third floor of PS 256, and that a large percentage of the student population was black.

Based on those facts alone, there was sufficient evidence for the Grand Jury to conclude that the writer of the offensive words was motivated by a perception of the person or persons who used the third floor female bathroom; that would include, among others, all the people in the school, all the female people in the school, all the black female people, even CB, a female who works in the school. A motion to amend the indictment to change the words CB with any of the above or even with the word “person” would be supported by the Grand Jury testimony and would not change the People’s theory of the case as it was presented to the Grand Jury.
In the case at bar, however, that is not what the People have sought to do. Instead, they attempted to substitute the words “CB as legal custodian for and acting in loco parentis on behalf of the minority student population at PS 256” for the words “CB”. When a child is the victim of a crime, it is the child, not the parent of the child or someone standing in loco parentis, who is named in the indictment as the victim of the crime. In the instant case, the victim of the criminal mischief is the owner or custodian of the damaged property; the individual or individuals of the protected class about whom the defendant is alleged to have formed certain beliefs or perceptions is not the victim.

The court observes that there is very little evidence in the Grand Jury testimony to support the allegation that the defendant committed the alleged act of Criminal Mischief in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious belief, age, disability, or sexual orientation of “CB as legal custodian for and acting in loco parentis on behalf of the minority students of PS 256”.
Accordingly, the motion to amend is denied without prejudice. While the indictment is sufficient to proceed to trial in its present form, should the People choose to renew the application for a proposed amendment which is supported by the Grand Jury testimony as noted in the discussion above, they are free to do so.

In addition, as the discussion set forth above shows, the defendant’s cross-motion for dismissal of the first count of the indictment is without merit, and is denied.

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