New York Hate Crimes Defense Attorney

A hate crime charge in New York raises the stakes of the underlying offense, with higher penalties, fines, and a criminal record on the line. The prosecution has to prove both what you allegedly did and why you did it.

As a former New York City prosecutor, attorney Mehdi Essmidi knows how the other side builds a case, and he plans each client’s defense around the prosecution’s likely strategy. Reach out for a free consultation.

Understanding Hate Crimes

A hate crime in New York is an underlying offense, such as assault, prosecuted with an added bias element that raises the penalty.

18 USC § 249 Federal Hate Crimes

It’s a federal crime to willfully cause bodily injury to someone because of a protected characteristic. An attempt is also a crime when it involves fire, a firearm, a dangerous weapon, or an explosive or incendiary device.

Race, color, religion, and national origin are covered on their own. Gender, sexual orientation, gender identity, and disability are covered when the crime has a federal connection, such as crossing state lines or affecting interstate commerce.

Crimes involving kidnapping, attempted murder, or aggravated sexual abuse, or that result in death, may carry life in prison. Other offenses carry up to 10 years.

NY Penal Law § 485.05 Hate Crimes

New York defines hate crimes in Penal Law § 485.05. There must be a specified offense and either intentionally selecting the victim, or intentionally committing the act because of a belief or perception about race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation. The belief doesn’t have to be correct.

Offenses That May Be Charged as Hate Crimes in New York (Penal Law § 485.05)

New York’s hate crime law applies only to the offenses listed in PL § 485.05 and to any attempt or conspiracy to commit one of them:

• Assault, gang assault, menacing, reckless endangerment, and strangulation
• Murder, aggravated murder, and certain forms of manslaughter
• Rape, sexual misconduct, forcible touching, and sexual abuse
• Stalking, harassment in the first degree, and aggravated harassment in the second degree
• Kidnapping, unlawful imprisonment, and coercion
• Criminal trespass, burglary, criminal mischief, and arson
• Petit larceny, grand larceny, and robbery
• Sex trafficking and certain weapon possession charges
• Falsely reporting an incident
• Making a terroristic threat and other terrorism offenses

Offenses missing from this list may still be prosecuted under their own statutes, without the hate crime enhancement. A charge that comes out of a protest carries the enhancement when the offense itself, such as assault or criminal mischief, is on the list.

Hate Crime Sentencing in New York

When the underlying offense is a misdemeanor or a class C, D, or E felony, the hate crime is treated as one class higher.

Assault in the third degree, a class A misdemeanor becomes a class E felony carrying up to 4 years in prison.

Class B and class A-I felonies keep their class, and the law sets higher minimum sentences. A class B hate crime sentenced as a first violent felony carries at least 8 years. For a class A-I hate crime, the minimum term is at least 20 years.

A hate crime built on a violent felony offense counts as a violent felony itself. If the person commits another violent felony within 10 years, the earlier conviction may raise the new sentence, and any time spent incarcerated is added to the 10 years.

When the court finds an appropriate program available, the sentence also includes a hate crime prevention and education program, training session, or counseling session.

Common Hate Crime Defenses

• Lack of evidence: The hate crime charge falls if the prosecution can’t prove beyond a reasonable doubt that you committed the underlying offense.
• Constitutional defenses: Courts have upheld the hate crime law itself, so constitutional arguments focus on how the evidence was gathered. Statements taken in violation of your rights and evidence from an unlawful search, often the core of the prosecution’s case on motive, may be suppressed.
• Lack of intent: The prosecution must also prove that you intentionally selected the victim, or intentionally committed the act, in whole or in substantial part because of a belief or perception about a protected characteristic, or the hate crime enhancement may not apply.

Contact Us for a Free Consultation

Former prosecutor Mehdi Essmidi knows how New York prosecutors try to prove both the act and the motive in a hate crime case, and he defends clients against each part of the charge.

The hate crime count may be challenged on its own, and it may be dismissed or reduced even when the underlying charge stays. Contact The Law Offices of Mehdi Essmidi today for a free consultation.

Frequently Asked Questions

Is it a hate crime to say something offensive to someone?

A hate crime in New York requires an underlying criminal offense from the list in Penal Law § 485.05, so offensive words alone don’t qualify. Aggravated harassment in the second degree, which covers threats of physical harm or property damage made by phone, text, or online, is one of the offenses that may be prosecuted as a hate crime. Once any qualifying offense is charged, what was said during the incident may become the prosecution’s evidence of bias.

If I got into a fight with someone of a different race or religion, is it automatically a hate crime?

New York law states that the race, religion, or other protected characteristic of the accused, the victim, or both isn’t enough on its own to prove a hate crime. Prosecutors must show that you selected the person, or committed the crime, because of a belief or perception about that characteristic. A slur shouted during the fight is evidence prosecutors will point to, and the defense may argue the fight started over something else.

How do prosecutors prove a crime was motivated by bias?

Prosecutors build the bias element from evidence, since motive is a state of mind. Words exchanged during the incident, statements made to police after the arrest, texts, social media posts, and any history of similar conduct may all be offered to show motive. A defense attorney may argue that angry words aimed at one person during a dispute reflect the dispute itself, and may move to suppress statements or digital evidence obtained unlawfully.

Can hate crimes apply to property damage?

Yes. In New York, property offenses such as criminal mischief and grand larceny may be charged as hate crimes when they are motivated by bias about national origin, ancestry, gender, religion, or another protected characteristic.