Opinion
772-08.
Decided September 12, 2008.
On June 17, 2008, after inspection of the Grand Jury minutes in camera, upon consent, I reserved decision on defendant's motion to dismiss the above-captioned indictment or counts thereof pending written submissions by both parties, which this Court has now received. With regard to those counts under New York's hate crime statute (Penal Law § 485.05) defendant now maintains 1)there is legally insufficient evidence to establish that defendant "in whole or in substantial part" based his actions on the religion or religious practices of the victims and 2) the statute is unconstitutional on an "as applied basis". As to the Aggravated Harassment in the First Degree counts (Penal Law § 240.31) defendant contends that these hate crime counts should be dismissed as the statute is unconstitutionally vague, a violation of defendant's First Amendment free speech rights and on an "as applied" basis. Defendant in his reply papers also seeks release of the Grand Jury minutes, which request is denied since such release is not "necessary to assist the Court in making its determination on the motion". CPL 210.30(3).
The facts of this case are set forth in detail in the parties' papers and are incorporated by reference herein. In summary defendant is charged with defacing inter alia numerous buildings (including two synagogues), sidewalks and motor vehicles by spray-painting or etching vile anti-Semitic words and/or symbols, including the swastika, within a relatively small area of Brooklyn Heights near his home during the overnight of September 24, 2007. Defendant is also charged with placing three identical anti-Semitic flyers on the windshields of publicly parked vehicles. Defendant has admitted to much of this reprehensible vandalism but contends he was only attempting to draw attention to the lack of police presence in Brooklyn Heights. The above-captioned 105 count indictment charges defendant with criminal mischief and making graffiti counts and numerous "hate crime" counts under Penal Law §§ 485.05 and 240.31.
ANALYSIS — LEGAL SUFFICIENCY
Although defendant has raised various constitutional challenges to the hate crime statutes it is well-settled that "[u]nder established principles of judicial restraint" a court should not address constitutional issues when a decision can be reached on some non-constitutional ground. Matter of Syquia v. Bd. of Educ. of the Harpursville Cent. School District, 80 NY2d 531, 535 (1992). This is especially true where the court is one of original jurisdiction. Accordingly, before addressing any constitutionality arguments, this Court will consider defendant's challenges to the legal sufficiency of the evidence adduced before the Grand Jury.
In 2000, New York enacted the "Hate Crimes Act". The "Legislative findings" are set forth in § 485.00 and recognize inter alia that hate crimes have become increasingly more prevalent and "victims are intentionally selected in whole or in part, because of their race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. Hate crimes do more than threaten the safety and welfare of all citizens, they inflict on victims incalculable physical and emotional damage and tear away at the very fabric of free society".
Penal Law § 485.05 enhances the penalty for committing specified offenses based upon bias motivation and is divided into two separate subdivisions, with defendant charged under subdivision (b) which provides: 1) A person commits a hate crime when he or she commits a specified offense and (b) intentionally commits the act or acts constituting the offense in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practices, age, disability or sexual orientation a of a person, regardless of whether the belief or perception is correct. (Emphasis added). The Practice Commentary explains that subdivision (1)(a) is aimed at a perpetrator who selects an individual based upon a belief or perception regarding a specified attribute of that person, whereas subdivision (b) "is aimed at a perpetrator who does not intentionally select an individual, but who intentionally commits the predicate crime because of a belief or perception regarding a specified attribute of a' person. An example would be a perpetrator who, professing hatred against a particular religion, sets off a bomb in that religions' place of worship." (Emphasis provided). (Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 485, 2008, Supp Pamph at 230).
Subdivision three lists the specified offenses and defendant does not challenge that he has been properly charged in accordance with a delineated offense.
Defendant is also charged with Aggravated Harassment in the First Degree (Penal Law § 240.31), which contains hate crime language within the body of the statute itself. Specifically § 240.31, as charged, provides: "A person is guilty of Aggravated Harassment in the First Degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property."
This Court finds that although Penal Law § 485.05(1)(b) may be somewhat inartfully drafted, in using the words "a person", the context of both that statute and § 240.31 clearly apply to protected classes and the targeted victim need not necessarily be identified as a member of such class. In other words, as long as a protected class is clearly targeted and identifiable, as it is here, by the charged conduct, a violation of these statutes is properly alleged and was supported by the evidence before the Grand Jury. This court agrees with the reasoning of the trial court in People v. Moorjaney, 11 Misc 3d 1079(A) (Sup Ct, Queens County 2006) to that effect and accordingly I find that the evidence adduced before the Grand Jury was legally sufficient to support each and every count of the indictment. See, People v. Bello, 92 NY2d 523 (1998); People v. Deegan, 69 NY2d 976 (1987); People v. Jennings, 69 NY2d 103, 115 (1986). Additionally, the assistant district attorney adequately charged the Grand Jury on the applicable law. See, People v. Calbud, Inc., 49 NY2d 389 (1980). There is therefore no reason to dismiss or reduce any of the counts in this indictment.
CONSTITUTIONAL CHALLENGE
Having determined that the evidence is legally sufficient to support all of the charged hate crime violations, the Court must now address defendant's constitutional challenges.
As to the counts under § 485.05 and § 240.31 defendant maintains that the statutes are unconstitutional "as applied" to him because they are so vaguely worded as to provide inadequate notice as to whether his conduct is illegal or not. When analyzing a challenge to the constitutionality of a penal law on the grounds of vagueness, it is well-settled that a court must apply a two-pronged analysis. See, People v. Bright, 71 NY2d 376, 382 (1988). First, the statute must provide sufficient notice of what conduct is prohibited and second it must not be drafted in such a manner as to encourage or permit arbitrary and discriminatory enforcement. Id, see also, People v. Nelson, 69 NY2d 302, 307 (1987). When a statute is being challenged as being unconstitutionally vague as applied the reviewing court must consider whether such statute can be constitutionally applied to a defendant under the facts of the particular case. People v. Stuart, 100 NY2d at 420. If the penal law statute is not impermissibly vague as applied to the defendant and provides him with adequate notice and the police with clear enforcement criteria, the court's inquiry is at an end.
As to the § 485.05(1)(b) hate crime counts and § 240.31 counts I conclude that the statutes are not unconstitutionally vague as applied to this defendant. The statutes clearly provide a person of ordinary intelligence with notice that the anti-Semitic conduct of which defendant is accused is prohibited. Secondly, the statutes as drafted do not invite arbitrary or discriminatory enforcement by law enforcement officials.
Several trial courts have addressed the constitutionality of Penal Law § 485.05 and have agreed it is constitutional. See, People v. Fox , 17 Misc 3d 281 (Sup Ct, Kings County 2007); People v. Diaz, 188 Misc 2d 341 (Sup Ct, NY County,2001); People v. Amadeo, (unreported) 2001 WL 1359091 (Sup Ct, Queens County 2001).
As to the counts under § 240.31 I reject defendant's contention that the statute abridges his First Amendment freedom of speech rights. In drafting its hate crime statutes New York was guided in part by a Wisconsin statute whose constitutionality was sustained by the United States Supreme Court. See, Wisconsin v. Mitchell, 508 US 476 (1993). The Supreme Court specifically held that the Wisconsin statute providing for enhancement of a defendant's sentence whenever he or she intentionally selects a victim based on the victim's race did not violate defendant's free speech rights by purporting to punish defendant's biased beliefs. The Court also found that the statute was not overly broad and was not directed at content but rather aimed at conduct unprotected by the First Amendment. Id at 487. Cf., R.A.V. v. St. Paul, 505 US 377 (1992). This Court therefore rejects defendant's constitutional free speech argument.
Accordingly, for all the reasons discussed herein defendant's motion to dismiss is DENIED in all respects.
IT IS SO ORDERED.