New York Hate Crime Anti-Terrorism Act: A Cursory Review of the Potential Domestic Terrorism Crime

At his State of the State address, New York Governor Andrew Cuomo formally rolled out his proposal to codify the Hate Crime Anti-Terrorism Act and combat anti Semitic and other discriminatory attacks. Encompassing more stringent elements than his late summer consideration of the law, the Governor views this future offense as a class “A1” violent felony. The statute, if passed by the legislature and ultimately incorporated into the Penal Law, would be punishable by life in prison without the possibility of parole.

While by no means an examination of the law since none has yet been codified, the following is a brief review of the potential crime as addressed in a recent New York Law Journal article.

Potential Elements

Although the proposed offense has not gone through the Codes Committee nor been examined and reviewed by the State Senate and Assembly as whole, for an accused to run afoul of this felonious offense he or she would have to (1) intend on killing at least five people (2) due to those persons’ perceived race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability or sexual orientation and (3) actually cause the death of at least one person. The statute would not mandate that prosecutors establish the victim or victims were as perceived by the accused, only that the defendant’s intention was to target these people based on what he or she believed to be their sexual orientation, national origin or religion, for example.

 Class A1 Felony

While there are different potential minimums depending on the charge, NY PL 70.00 dictates when or if a person can be released in fifteen years, twenty-five years or as planned with the Hate Crime Ant-Terrorism Act, be imprisoned for life without the possibility of parole.

Practical Issues and Prosecution

Ascertaining an alleged perpetrator’s intention is not always a simple task. While it would be easier to establish the motivation and goal of an accused if he or she hollered a racial or religious slur, for example, before detonating a device or using a firearm, such behavior is not always readily apparent. Law enforcement would have to potentially execute search warrants and secure witnesses with firsthand knowledge of and interactions with a defendant. Were there writings, social media postings, or statements that a defendant made prior to the attack indicating he or she was perpetrating the violence due to opinions about the targets’ gender? Alternatively, for example, are there tattoos on that person’s body such as a swastika or witnesses who could put the defendant at a rally of a fringe hate group? At bottom, what evidence would establish the accused was bent on killing a protected group of people because of this bias as opposed to “only” hurting anyone?

Another hurdle for prosecutors might be establishing the five or more persons element. Would it be presumed that if a homemade bomb was placed in a public place were thousands of people walked everyday that the intention was to kill at least five individuals? What if such a device was detonated at a house of worship on a date or time when there were no services? Further, what if it was clear as to the religious basis of an attack but the defendant wielded a knife? Would it matter if he was subdued after attacking one or two people?  Would the five-person threshold be reached after individuals came to the aid of one victim or that the fatality occurred during the attacker’s retreat? For that matter, would the assumption default to a race-based attack because the victimized group were all a common race? What if it was a clearly multi-raced and mixed group of people even if it was eight, but four people of one apparent race and four of another?

A Failure to Kill

Certainly, if there are no fatalities as a result of a defendant’s conduct then it is unquestionably a good thing. In the eyes of the Penal Law, however, then what happens? In such a scenario the accused might be charged with Attempted Hate Crime Anti-Terrorism. Penal Law 110 would be charged in front of the substantive section of the criminal law indicating the attempted status. What this means in terms of penalty and punishment is that the offense would be reduced to a class “B” violent felony with a punishment potential of five to twenty-five years in prison for a first-time offender.

The purpose and objective of this potential crime is unquestionably a worthy one, but the Governor and legislature should address these and other issues as they craft the statute to best ensure the goals of the law are implemented and District Attorneys are able to enforce the same.

Crotty Saland PC is a New York criminal defense and victim advocacy firm founded by two former Manhattan prosecutors.

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