Hate Crime Defense in New York

Three Words on the Indictment That Change the Felony Class

In New York a hate crime is not a separate offense. It is an ordinary charge, an assault, a criminal mischief, a menacing, a harassment, with the words “as a hate crime” added, and with those words the charge moves up a felony class: a misdemeanor assault becomes a felony, a class D burglary becomes a class C. The prosecution earns that bump by proving one additional element, that you selected the victim or committed the act in whole or in substantial part because of a belief about their race, religion, sexual orientation, gender identity, age, disability, or one of the other characteristics listed in Penal Law 485.05. That element is proven from words, messages, and context, and it is where these cases are won and lost.

Attorney Andrew DeLuca defends hate crime designations and bias-motivated harassment charges in the courts of Saratoga, Warren, Washington, Fulton, and Montgomery Counties. Most of these cases begin as a bar fight, a road-rage incident, a neighbor dispute, or a drunken confrontation in which something was said, and the defense usually turns on whether the slur was the reason for the act or a word thrown during it.

To talk to Andrew directly, at any time call 518-245-9109

What the Designation Does to the Sentence

Penal Law 485.10 sets the consequences:

• Misdemeanors and class C, D, and E felonies are deemed one category higher. A class A misdemeanor assault (364 days maximum) charged as a hate crime is a class E felony with up to four years in state prison; an E felony becomes a D (up to seven years), a D becomes a C (up to fifteen), and a C becomes a B (up to twenty-five). The bump applies to attempts and conspiracies at their own level.
• Class B felonies are not bumped; instead the statute sets floors: on an indeterminate sentence the maximum term must be at least six years, on a first-time determinate violent felony sentence the term must be at least eight, and on a second felony offender sentence at least ten.
• Class A-I felonies carry a minimum period of at least twenty years.
• Violent felony status carries over only if the underlying offense was already a violent felony under Penal Law 70.02. The bump alone does not make a non-violent felony violent.
• A hate crime program is added to the sentence where the court finds an appropriate program, training, or counseling session is available.

The practical effect is largest at the bottom of the ladder. A misdemeanor that would ordinarily end in a conditional discharge or a short local sentence becomes a felony with state prison exposure, a felony record, and the loss of the misdemeanor-level dispositions that would otherwise be available.

Bias-Motivated Harassment and Domestic Terrorism Motivated by Hate

Two sets of offenses build bias into the crime itself rather than adding it on. Aggravated harassment in the second degree under Penal Law 240.30(3), a class A misdemeanor, is striking, shoving, kicking, or otherwise subjecting a person to physical contact, including removing a religious clothing article or head covering, or attempting or threatening to, because of a belief about a protected characteristic. Aggravated harassment in the first degree under 240.31, a class E felony, covers damaging a place of worship by more than $50, repeating the misdemeanor within ten years, or placing a swastika, a burning cross, or a noose on property without permission. Because bias is already an element, neither can be charged as a hate crime and bumped again. At the far end, Penal Law 490.27 and 490.28, the domestic act of terrorism motivated by hate offenses added in 2020, are class A-I felonies for attempting to kill or seriously injure five or more people because of their perceived characteristics, with mandatory life without parole where a death results. Separately, Civil Rights Law 79-n gives victims of bias-motivated violence, intimidation, or a bias-motivated police call a civil claim for damages, with a civil penalty of up to $5,000 per violation.

How Hate Crime Designations Are Defended

• Motive, not vocabulary. The State must prove that bias was a substantial part of why the victim was chosen or the act was done. A slur used during a fight that started over a parking space, a bar tab, or a relationship is evidence, but it is not the same as proof of motive, and the full sequence of events, the history between the parties, and what was said before and after are the defense.
• The insufficiency rule. Under 485.05(2), the fact that the defendant and the complainant differ in race, religion, or another characteristic is not legally sufficient evidence of a hate crime. Prosecutions that rest on that difference plus an inference fail as a matter of law.
• The underlying offense. Every hate crime is built on a specified offense that has its own elements and defenses. If the assault was justified, the mischief was not intentional, or the menacing was not a genuine threat, the hate crime falls with it.
• Charging errors. A hate crime must be pleaded as such under CPL 200.50, the underlying offense must be on the 485.05(3) list, and the bias-harassment offenses in Article 240 cannot be stacked with an Article 485 designation. Each is checked.
• The disposition. Where the underlying conduct is proven but the motive is contested, resolution to the underlying offense without the designation removes the category bump, the felony exposure, and the label, and it is the most common outcome in these cases.

Hate Crime Cases in Saratoga County and the Capital Region

Misdemeanor-level bias harassment and hate crime charges arraigned as felonies both start in the local courts, Saratoga Springs City Court, Glens Falls City Court, Amsterdam City Court, and the town and village courts; a felony designation is presented to the grand jury and prosecuted in Saratoga County Court, Warren County Court, or the other county courts. Related pages: Assault, Menacing, Criminal Mischief, Felony Defense, and What Happens After an Arrest.