Assault as a Hate Crime in New York

Posted By Galluzzo & Arnone || 16-Jan-2014

Many New Yorkers have read reports in the news media about cases, oftentimes assault cases, which are eligible for enhanced sentencing because the underlying act is treated as a hate crime.

In 2000, The New York State legislature passed new laws providing for stiff prison sentence enhancements for offenders standing convicted of “hate crimes.” Penal Law (“PL”) 485.00. Penal Law section 485.05 defines a hate crime as follows:

§ 485.05 Hate crimes. 1. A person commits a hate crime when he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed 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 orientationof a person, regardless of whether the belief or perception is correct, or (b) 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 orientationof a person, regardless of whether the belief or perception is correct. 2. Proof of race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of the defendant, the victim or of both the defendant and the victim does not, by itself, constitute legally sufficient evidence satisfying the people’s burden under paragraph (a) or (b) of subdivision one of this section.

CPL 485.05 (emphasis added). The “specified offense[s]” noted in subsection one include all of the Assault provisions found in Article 120 of the CPL. PL sec. 485.05(3). If a person is convicted of the specified offense, and the jury finds that the offender or offenders committed the offense “as a hate crime,” the convicted person is eligible to be sentenced under CPL 485.10:

§ 485.10 Sentencing. 1. When a person is convicted of a hate crime pursuant to this article, and the specified offense is a violent felony offense, as defined in section 70.02 of this chapter, the hate crime shall be deemed a violent felony offense. 2. When a person is convicted of a hate crime pursuant to this article and the specified offense is a misdemeanor or a class C, D or E felony, the hate crime shall be deemed to be one category higher than the specified offense the defendant committed, or one category higher than the offense level applicable to the defendant’s conviction for an attempt or conspiracy to commit a specified offense, whichever is applicable. 3. Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class B felony: (a) the maximum term of the indeterminate sentence must be at least six years if the defendant is sentenced pursuant to section 70.00 of this chapter; (b) the term of the determinate sentence must be at least eight years if the defendant is sentenced pursuant to section 70.02 of this chapter; (c) the term of the determinate sentence must be at least twelve years if the defendant is sentenced pursuant to section 70.04 of this chapter; (d) the maximum term of the indeterminate sentence must be at least four years if the defendant is sentenced pursuant to section 70.05 of this chapter; and (e) the maximum term of the indeterminate sentence or the term of the determinate sentence must be at least ten years if the defendant is sentenced pursuant to section 70.06 of this chapter. 4. Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class A-1 felony, the minimum period of the indeterminate sentence shall be not less than twenty years.

PL sec. 485.10 (emphasis added). Using the example of a standard felony assault case, then, we can observe the potential “hate crime” enhancements at work, and note that those enhancements are significant. Assuming (and speculating) that a given defendant in a given case is charged with and convicted of Assault in the second Degree, PL sec. 120.05, a class D violent felony, he could be sentenced as though convicted of a class C violent felony. The most significant aspect of the jump from a “D” to a “C” here is the 8 year difference in the maximum allowable sentence. If a given defendant is sentenced as a first-time offender, then, his exposure jumps from a determinate prison sentence in the range of 2-7 years to a determinate prison sentence in the range of from 3.5 t-15 years, if a second felony offender, from 3-7 to 5-15, and if asecond violent felony offender from 5-7 to 7-15.

If, on the other hand, a given defendant is charged with Assault in the first degree, PL sec. 120.10, aclass B violent felony, his maximum exposure would remain the same, but his minimum exposure would increase by three years (from 5 to 8 years) if a first-time offender, by two years (from 8 to 10 years), if a second felony offender, or by two years (from 10 to 12 years), if a second violent felony offender.

Fig. Sentence Enhancements for Assault as Hate Crime in New York

Offender Status Assault 2 (Non-Hate Crime) Assault 2 (Hate Crime)
First Offense 2-7 determinate 3.5-15 determinate
Second felony offender 3-7 determinate 5-15 determinate
Second violent felony offender 5-7 determinate 7-15 determinate
Assault 1 (Non-Hate Crime) Assault 1 (Hate Crime)
First Offense 5-25 determinate 6-25 determinate
Second felony offender 8-25 determinate 10-25 determinate
Second violent felony offender 10-25 determinate 12-25 determinate

Additional prosecutorial leverage in plea bargaining are part and parcel to the sentence enhancements. Under some circumstances, then, New York criminal defense attorneys may consider taking such a case to trial in an attempt to challenge the “hate” intent element, rather than advising their clients to plead to the top count of the indictment. This is especially so in the case of those representing clients charged with a “B” violent hate crime. On the other hand, however, the 8-year ceiling increase authorized for offenders convicted of the “D” Assault may cause their attorneys (and, of course, their clients) to think twice about risking trial. If you have been charged with either felony assault as a hate crime in New York or misdemeanor assault as a hate crime in New York, call the experienced attorneys of Galluzzo & Arnone LLP at (212) 918-4661 or email us at info@gjllp.com

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Categories: Assault