Essay 4072

From The New York Times…

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To Commit a Hate Crime, Must the Criminal Truly Hate the Victim?

By MICHAEL BRICK

In her courtroom on the 21st floor of State Supreme Court in Brooklyn yesterday, Justice Jill Konviser-Levine sat and pondered the question of hate.

“Bottom line,” Justice Konviser-Levine ruminated aloud, “is animus an element of the crime?”

The crime in question was the killing of Michael J. Sandy, 29, a gay man who was lured to a parking area in Sheepshead Bay last October, beaten and chased into traffic. He later died in the hospital.

Prosecutors have said a group of young men contacted Mr. Sandy through an online gay chat room, selecting him as a robbery victim in the belief that a gay man would be unwilling or unable to put up a fight and unlikely to report the crime.

The defendants — John Fox, 20; Ilya Shurov, 21; and Anthony Fortunato, 21 — have been charged not just with murder, but with murder under the state Hate Crimes Act of 2000, which provides longer prison sentences for crimes motivated “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.”

Prosecutors and defense lawyers have presented contrasting interpretations of that phrase, the words it includes and the words it omits.

In court documents, a defense lawyer has asked Justice Konviser-Levine to dismiss the enhanced murder charges against all three defendants because “the crimes alleged are not crimes of hate but rather crimes of opportunity.”

That lawyer, Gerald J. Di Chiara, filed a motion in which he argued that lawmakers responsible for the Hate Crimes Act had written a statute applicable only to defendants who truly hate their victims. He quoted from a State Senate memorandum in support of a law “designed to ensure that only those who truly are motivated by invidious hatred are prosecuted for committing hate crimes.”

To allow prosecutors to pursue hate crime charges without demonstrating such hatred, Mr. Di Chiara argued, would render the law unconstitutionally vague and arbitrary.

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