Police Step Up Hate Crimes Enforcement
After eight alleged incidents against Jews in December, Mayor Bill de Blasio promised to get tough on alleged offenders.
DeBlasio pledged that more officers would be in Crown Heights, Williamsburg, and other predominantly Jewish neighborhoods. The NYPD would also be visible at synagogues and other holy places, he added. A fatal shooting at a kosher market in New Jersey may have sparked this latest spate of violence. So, far, NYPD officers have arrested three suspects on various hate crime-related charges. Several more suspects are at large.
Governor Andrew Cuomo called one such incident “a horrific and cowardly act of anti-Semitism.”
The Hate Crime Enhancement
New York’s hate crime law is not a law per se, but a penalty enhancement. It applies if a person targets a victim or commits a crime “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.” In other words, hate is not an element of a hate crime in New York. This vague law has survived numerous constitutional challenges.
The second part of the enhancement, the listing of protected classes, is relatively easy for prosecutors to establish in court. A disability could be any physical, mental, or other condition which affects a person’s everyday life. In this context, sexual orientation includes gender identity.
The first part of the enhancement, however, could be complicated. Some defendants utter racial, ethnic, or other slurs while they commit crimes. But in other situations, prosecutors must use other evidence, such as posts on social media, to establish bias.
Investigators can usually access deleted posts and the like without search warrants. Most social media platforms voluntarily provide such information to investigators. Once a person posts or likes information online, there is arguably no longer a privacy interest. Therefore, the Fourth Amendment does not apply.
Time could be critical here. If the defendant publishes a biased post in the hours before the alleged incident, it is fairly easy to establish a connection. If the post is several days, weeks, or months old, that’s a different story. That’s especially true if prosecutors rely on subsection (1)(a) of the hate crime enhancement, which is the intentional selection of a victim who is a member of a protected class.
Membership alone is insufficient, according to section two. For the most part, the law assumes that violent crime victims are either in the wrong place or the wrong time or they were targeted for economic reasons.
These economic reasons could be a back door to a hate crime enhancement. For example, prosecutors could argue that a burglar targeted an ethnic neighborhood because he believed that these people are rich.
Defending Assault Charges
A criminal defense attorney to defeat hate crime enhancements will attack the evidence in the underlying crime. Prosecutors must establish each element of the offense beyond a reasonable doubt.
Contrary to popular myth, physical injury is usually not an element of misdemeanor assault. However, without any injury, it is more difficult to prove that the defendant’s conduct was intentional, as opposed to accidental.
Additionally, prosecutors normally need the victim’s testimony to make assault charges hold up in court. Alleged victims are not professional witnesses, they are not used to aggressive or detailed questioning, of every minute detail which is the avenue many attorneys pursue because of the penalty enhancement