A woman is accused in the indictment with four crimes which includes criminal mischief in the fourth degree, as a hate crime, criminal mischief in the fourth degree, making graffiti and possession of graffiti instruments. It is alleged that the woman, a teacher, wrote with a black marker the three unpleasant words on the walls of a female bathroom on the third floor of their school.
The grand jury accuses the woman of the crime of criminal mischief in the fourth degree as a hate crime. It was committed when the woman, having no right to do so nor any reasonable ground to believe she had such right, intentionally selected a girl in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sex orientation of the girl, regardless whether the belief or perception was correct or intentionally committed 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 practice, age, disability or sexual orientation regardless of whether the belief or perception was correct.
The woman argues that the proposed modification would change the theory of the trial because the indictment specifies the girl as the specific person about whose race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation the woman had formed beliefs or perceptions which allegedly motivated the underlying violence and criminal mischief.
Further, the woman claims that the hate crime decree specifies that it must be directed to a person. Based on records, the woman argues that the focus of a hate crime is limited to single, specific individual not a group of individuals unless it is directed at an entity or organization that is identical in nature.
Contrary to the woman’s claim, there is nothing in the decree concerning entities or organizations that are purely identical in nature and the woman has provided no authority for the proposition.
Subsequently, both the complainant and the woman seem to misunderstand what the law requires in order to establish the commission of a hate crime.
Sources revealed that the identity and number of the person or persons about whom the woman is claimed to have formed a perception which motivated the alleged underlying crime is irrelevant. Further, the painting of the offensive words on the walls of a subway is clearly a hate crime and that offensive conduct is directed at more than one person.
The jury stated that in order for the complainant to find the woman guilty of the crime, they are required to prove, from all of the evidence in the case, beyond a reasonable doubt, the three elements.
The court stated that the woman committed the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding a person, regardless of whether the belief or perception is correct and that the woman did so intentionally.
Based on records, as the legislature made clear in the language of the law, the victim of a hate crime in society as a whole and it is apparently for that reason that the hate crime decree does not require specification of any particular person. It is the element of the protected class not the name of any particular individual member or members of that class which is of importance. For that reason, the simple manner in which to allege a hate crime is to set forth the particular attribute of the protected class which is claimed to have motivated the offender and not name any particular person.
The indictment could simply allege that the woman committed the underlying crime in whole or substantial part because of a belief or perception of the race, or sex, or sexual orientation of a person.
At present, count one of the indictment goes beyond what is required. It names a specific individual, the girl, as the person about whom the woman formed a belief or perception which motivated the alleged act of criminal mischief. Whether the complainant can modify the language depends upon whether the proposed modifications is supported by the testimony in the grand jury and whether the proposed modification changes the complainant’s theory of the case as reflected in the testimony before the grand jury.
Based on records, there was sufficient evidence presented before the grand jury to support the conclusions that the woman damaged property, that the girl was the lawful custodian of the said property, that the damage consisted of the writing of three unpleasant words on the wall in the female bathroom on the third floor of the school, and that a large percentage of the student population was black. Based on those facts alone, there was sufficient evidence for the grand jury to conclude that the writer of the offensive words was motivated by a perception of the person or persons who used the third floor female bathroom, that would include, among others, all the complainant in the school, all the female complainant in the school, all the black female complainant, even the girl, a female who works in the school.
Afterward, a motion to modify the indictment to change the words, the girl, with any of the above or even with the word person would be supported by the grand jury testimony and would not change the complainant’s theory of the case as it was presented to the grand jury.
However, that is not what the complainant had sought to do in the instant application. At trial, the court attempt to substitute the words as the girl as legal custodian for and acting on behalf of the minority student population of the school.
It is noted that the proposed modification is to a certain extent. When a child is the victim of a crime, it is the child, not the parent of the child or someone standing, who is named in the indictment as the victim of the crime. In the instant case, the victim of the criminal mischief is the owner or custodian of the damaged property, the individual or individuals of the protected class about whom the woman is alleged to have formed certain beliefs or perceptions is not the victim.
Sources revealed that there is a very little evidence in the grand jury testimony to support the allegation that the woman committed the alleged act of criminal mischief in whole or substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious belief, age, disability, or sexual orientation of the girl as legal custodian for and acting behalf of the minority students of the school.
Consequently, the motion to modify is denied without prejudice. While the indictment is sufficient to proceed to trial in its present form, the court stated that the complainant should choose to renew the application for a proposed modification which is supported by the grand jury testimony as noted in the discussion and they are free to do so. In addition, as the discussion set forth, the woman’s cross motion for dismissal of the first count of the indictment is without merit, and is denied.
Because of various negative influences surrounding us, it is never easy to find a safe place for our family. Whenever you or someone in your family experience abuse, you can seek legal assistance from the Nassau County Criminal Lawyer. Furthermore, you can approach the legal team of the Nassau County Sex Crime Attorney at Stephen Bilkis and Associates for your sex crime related lawsuit.