People v. FoxPeople v. Fox
OPINION OF THE COURT
The defendants are charged in a single indictment with acting in concert to commit the following crimes: murder in the second degree as a hate crime, murder in the second degree, manslaughter in the second degree as a hate crime, manslaughter in the second degree, assault in the first degree as a hate crime, assault in the first degree, attempted robbery in the first degree as a hate crime, attempted robbery in the first degree, attempted robbery in the second degree as a hate crime, and attempted robbery in the second degree.
The defendants have jointly filed a motion to dismiss all of the hate crimes charges contained in the indictment on two grounds: (1) that their conduct does not fall within the scope of the hate crimes statute as they acted without bias, prejudice or hatred toward the decedent, and (2) that the hate crimes statute, as applied to the facts of this case, is unconstitutionally vague. The People oppose the defendants’ motion. Oral argument was held on June 19, 2007. For the reasons that follow, the motion to dismiss the hate crimes charges in the indictment is denied.
1. The Hate Crimes Statute
Penal Law § 485.05 (1) (a) provides:
“A person commits a hate crime when he or she commits a specified offense[2 ] and . . . 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 orientation of a person, regardless of whether the belief or perception is correct.”
In addition, Penal Law § 485.05 (2) provides:
“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.”
2, The People’s Evidence
The People maintain that the defendants, under an acting in concert theory, intentionally selected the decedent, Michael Sandy, as the person against whom the specified offenses were committed “in whole or in substantial part because of a belief
The People also maintain that on that same evening, while at Fortunato’s house, Fortunato, in the presence of Fox and Timmins, used a computer to enter a “gay chat room” where he contacted Sandy “whom they all believed to be a gay man, and arranged to meet him.” (Id.) Later that evening, while Fortunato, Fox and Timmins were on their way to meet Sandy they met defendant Shurov and told him, in sum and substance, “of their plans to rob a gay man.” (Id. at 2 ¶ 4.) The four men then walked together to the meeting area where Sandy was waiting in his car. Fox and Fortunato approached Sandy’s car, but Sandy, in sum and substance, “expressed discomfort about meeting them under those circumstances and drove away.” (Id.)
Fortunato, Fox, Shurov and Timmins then went back to Fortunato’s house where they resumed computer contact with Sandy. After speaking with Sandy about drugs and informing him, in sum and substance, that he “would get his dick sucked,” arrangements were made for Sandy to meet Fox at a particular location where they would then drive together to Plum Beach. (Id. at 2 11 5.) Unbeknownst to Sandy, however, Fortunato, Shurov and Timmins would also be there. (Id. at 2-3 ¶ 5.)
The evidence shows that Fox and Sandy met and drove together in Sandy’s car to Plum Beach. At some point after arriving at that location, Sandy was confronted by the defendants and punched. As Sandy attempted to reenter his car and flee the area, Shurov pulled him out and again punched him. Sandy then fled on foot only to be chased onto the Belt Parkway where he was hit by a car. Sandy later died as a result of his injuries. (Id. at 3 ¶ 6.)
3. Rulings on the Legal Sufficiency of the Grand Jury Minutes
On March 14, 2007, this court issued decisions and orders with respect to each defendant upholding the legal sufficiency of all of the charges before the grand jury, including the hate crimes charges. In upholding the legal sufficiency of the hate
B. The Defendants’ Claims
1. The Defendants’ Claim That Their Conduct Does Not Fall within the Scope of the Hate Crimes Statute
The defendants’ claim that their conduct does not fall within the scope of the hate crimes statute is rejected. A person commits a hate crime when he or she commits a specified offense and intentionally selects the person against whom the offense is committed or intended to be committed in whole, or in substantial part, based on a belief or perception regarding the person’s “race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.” (Penal Law § 485.05 [1] [a].) In this case, the grand jury evidence shows that the defendants devised a plan to lure a gay man to a particular location in order to rob him, as Fortunato told Fox and Timmins he had done in the past. The evidence further shows that the defendants followed through on this plan by: (1) using the Internet to enter a gay chat room; (2) engaging in conversations in that gay chat room with Sandy, whom they believed to be a gay man; (3) luring Sandy to a remote location with false promises of sexual favors; and (4) attempting to rob Sandy upon his arrival.
The grand jury evidence shows that this is not a case where hate crimes are charged simply because the victim just happened to be of a particular sexual orientation. (See Penal Law § 485.05 [2].) Rather, this is a case where the defendants deliberately set out to commit a violent crime against a man
The defendants implicitly recognize that their conduct falls within the plain language of the hate crimes statute and seek to avoid its implications by asking this court to redefine a hate crime in a manner that would remove them from the scope of the statute. They claim that the legislative findings set forth in Penal Law § 485.00 alter the definition of a hate crime and additionally require the People to prove that the crime was motivated by bias, prejudice or hatred. As the defendants assert that there is no evidence that they were motivated by bias, prejudice or hatred toward Sandy when they attempted to rob him, they claim the hate crimes charges must be dismissed.
The legislative findings, however, do not require proof of anything other than the intentional selection of a victim because of their “race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.” (Penal Law § 485.05 [1] [a].) The Legislature appears to have included its findings within Penal Law article 485 as a means of: (1) justifying its decision to enhance sentences in cases where victims of specified offenses are intentionally selected based on a protected characteristic; (2) underscoring its outrage regarding such conduct; and (3) advancing its goal of deterring crimes motivated by bias, prejudice or hatred. (See Penal Law § 485.00 [enhanced punishment is necessary in such cases “to provide clear recognition of (their) gravity . . . and the compelling importance of preventing their recurrence”].) The Legislature, through its findings, therefore, made an assessment that the intentional selection of a victim based on a protected characteristic is tantamount to a crime motivated by bias, prejudice or hatred, thereby justifying enhanced punishment. (See Penal Law § 485.00.)
Moreover, had the Legislature wanted to require that a hate crime be based on something more than just the intentional selection of the victim because of a particular attribute, it could have done so. That the Legislature limited such offenses solely to instances where a victim of a specified offense is intentionally selected in whole or in substantial part because of a protected trait is a clear indication of its intent that no other criterion was required in order to sustain such a charge. (See People v Tychanski,
While the defendants appear to question the wisdom of the Legislature’s decision in drafting the hate crimes statute in this manner, a court’s role in interpreting a statute is limited to ascertaining the Legislature’s intent in drafting the statute and interpreting the statute in accord with that intent. (See People v Smith,
Finally, the defendants assert that they should not be charged with hate crimes as their decision to rob Sandy was motivated only by their desire to obtain money and drugs. This argument is without merit. The hate crimes statute is premised both on the intent to commit a specified offense and on the intent to select a victim of that offense because of that victim’s “race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation” (Penal Law § 485.05 [1] [a]). Thus, for a hate crime to be charged in this case the statute requires both an intent to attempt to forcibly steal property, which the defendants admit (see Penal Law §§ 110.00, 160.00), and an intent to select the robbery victim because of that victim’s sexual orientation, which the grand jury evidence supports. (See Penal Law § 485.05 [1] [a].) Simply stating that their motivation was limited to their desire to obtain money and drugs, therefore, does not take the defendants out of the ambit of the hate crimes statute.
The defendants’ claim that their conduct does not fall within the scope of the hate crimes statute is rejected.
2. The Defendants’ Claim That the Hate Crimes Statute is Unconstitutionally Vague as Applied to the Facts of this Case
The defendants claim that the hate crimes statute is unconstitutionally vague as applied to the facts of this case.
The law is well settled that a state statute “is presumed to be valid” (see People v Foley,
The New York Court of Appeals has adopted a two-pronged analysis to determine whether a statute is unconstitutionally vague. Under the first prong, a court must determine whether the statute provides a person of “ordinary intelligence” with “sufficient notice of what conduct is prohibited.” (People v Bright,
Under the second prong of the vagueness test, a court must determine whether the statute is written in such a manner “as to permit or encourage arbitrary and discriminatory enforcement.” (People v Bright,
In People v Stuart (
“As the term implies, an as-applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case. ... By contrast, a facial challenge requires the court to examine the words of the statute on a cold page and without reference to the defendant’s conduct. . . .
“Because facial challenges to statutes are generally disfavored . . . and legislative enactments carry a strong presumption of constitutionality . . . , a court’s task when presented with both a facial and as-applied argument is first to decide whether the assailed statute is impermissibly vague as applied to the defendant. ... If it is not and the statute provides the defendant with adequate notice and the police with clear criteria, that is the end of the matter. ‘[T]he court will not strain to imagine marginal situations in which the application of the statute is not so clear’ (Nelson,69 NY2d at 308 . . . ).
“It follows, therefore, that if a defendant makes anas-applied vagueness challenge and the court repudiates it, the facial validity of the statute is confirmed. . . . That is so because, in rejecting the as-applied challenge, the court will have necessarily concluded that there is at least one person — the defendant — to whom the statute may be applied constitutionally. ... It would thus be impossible for a defendant to establish the statute’s unconstitutionality in all of its applications.”
The defendants have not met their heavy burden of proving beyond a reasonable doubt that the hate crimes statute is unconstitutionally vague as applied to the facts of this case. As a threshold matter, the statute is not unconstitutionally vague as the plain wording of the statute “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” (People v Shack,
Nonetheless, the defendants argue that the statute is unconstitutionally vague as applied to them in that the term
Although the term “in whole or in substantial part” is not defined by the Penal Law, the Legislature is not precluded “from using ordinary terms to express ideas that find adequate interpretation in everyday usage and understanding.” (People v Illardo,
The words at issue in this case are “in whole or in substantial part.” Webster’s Dictionary defines “whole,” inter alia, as “[h]aving no part or element missing: complete.” (Webster’s II New Riverside Dictionary 774 [rev ed 1996]; see Pime v Loyola Univ. of Chicago,
In this case, any person of ordinary intelligence would understand that the words “in whole” mean completely or entirely and the words that immediately follow it “substantial part” mean a considerable portion or amount. (People v Nelson,
For these same reasons, the term “in whole or in substantial part,” when considered in conjunction with the remainder of the statute, satisfies the second prong of the vagueness test in that it clearly informs law enforcement officials of the conduct that violates the statute, i.e., the intentional selection of a crime victim based entirely or in considerable part upon that victim’s sexual orientation. (People v Stuart,
The defendants’ second argument appears to be that the definition of a hate crime as set forth in Penal Law § 485.05 (1) (a) is unconstitutionally vague unless it is read to require that the crimes against Sandy were actually motivated by bias, prejudice or hate. The law is well settled, however, that a court examining a statute on vagueness grounds is required to determine whether the existing statutory language sufficiently informs persons of ordinary intelligence of the forbidden conduct and provides law enforcement officials with clear standards for enforcement. (See People v Stuart,
In this case, the defendants have not met their burden of proving beyond a reasonable doubt that the definition of a hate crime as set forth in Penal Law § 485.05 (1) (a), which makes no specific reference to bias, prejudice or hate, is unconstitutionally vague as applied. Nor could they as the definition “clearly delineates specific conduct easily avoided by the innocent-minded” — namely, the intentional selection of a crime victim in whole or in substantial part because of that victim’s sexual orientation. (People v Nelson,
Moreover, the statute provides clear standards for enforcement in that it does not permit a hate crime to be charged merely because a victim happens to possess a trait protected by the statute. Indeed, Penal Law § 485.05 (2) would not countenance such a result. Rather, such a prosecution is permitted only when the victim is intentionally selected because of that protected trait. (See Penal Law § 485.05 [1] [a].) These clear standards of enforcement were easily applied by law enforcement officials in this case as the evidence shows that the defendants made a deliberate and purposeful decision to target Sandy because of his sexual orientation. (People v Stuart,
The defendants’ claim that the hate crimes statute is unconstitutionally vague is rejected.
Notes
. The People’s argument that the defendants’ motion should be summarily denied as time-barred is rejected. Notwithstanding the 45-day time period prescribed by CPL 255.20 (1) in which all motions should be served and filed, a court, “in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose” of an untimely motion on the merits. (CPL 255.20 [3].) This court has chosen to exercise its discretion to consider the defendants’ motion based on the following: (1) defendants have raised challenges to the constitutionality and scope of a
. The “specified offenses” in the indictment upon which the hate crimes charges are based are: murder in the second degree (Penal Law § 125.25 [3]), manslaughter in the second degree (Penal Law § 125.15 [1]), assault in the first degree (Penal Law § 120.10 [4]), attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [1]), and attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]). Each of these crimes are “specified offense[s]” as defined by Penal Law § 485.05 (3).
. Although the defendants indicated that the purpose of filing the instant motion was to challenge the constitutionality of the hate crimes statute, the defendants have raised the additional claim that their conduct does not fall within the scope of the statute. As this issue has been briefed and argued by both parties, it has been considered by this court.
. As hate crimes legislation is often a matter of great controversy (see e.g., MacNamara, New York’s Hate Crimes Act of 2000: Problematic and Redundant Legislation Aimed at Subjective Motivation, 66 Alb L Rev 519 [2003]), the Legislature apparently felt the need to justify its decision to enact such legislation by including its findings in the text of the statute. But no matter the reason for its inclusion, surely it was not to add an element to the definition of a hate crime as set forth in Penal Law § 485.05 (1) (a), which
. While a defendant’s subjective manifestation of bias or hate may be relevant to determining whether a victim was intentionally selected because of a protected characteristic (see People v Marino,
. No facial challenge to the statute has been made in this case. (See defendants’ motion at 9 [“Here the defendant is not challenging the statute facially but rather the application of the statute under the facts of this case i.e. as-applied”].) Nor have the defendants claimed that the hate crimes statute violates the First Amendment. Indeed, such a claim would not be viable as the Legislature, in drafting the hate crimes statute, was guided in substantial part by the Wisconsin hate crimes statute that has been upheld on First Amendment grounds by the United States Supreme Court in Wisconsin v
. There is no merit to the defendants’ wholly unsupported claim that the “strong presumption of constitutionality of legislative enactments” does not apply to an as-applied vagueness challenge. (See e.g. People v Jenner,
. Mitchell, which upheld Wisconsin’s hate crimes statute on vagueness and First Amendment grounds (see
. In actuality, the defendants’ argument with respect to the absence of bias, prejudice or hate is not one of constitutional dimension, but rather is a claim that the statute was enforced in a manner contrary to legislative intent, a matter wholly irrelevant to the issue of vagueness. Indeed, an argument similar to the one the defendants now raise was recently rejected by the Appellate Division, Third Department, in People v Jenner (