New York Penal Law § 485.05 – Hate Crimes

Under New York Penal Law § 485.05, Hate Crimes is a criminal offense that prosecutors can bring in conjunction with another underlying offense when a defendant commits a crime against a victim based at least in part on one or more of the victim's immutable characteristics, such as race, color, religion, age, disability, national origin, ancestry, gender, gender identity, gender expression, or sexual orientation. The severity of a hate Crimes conviction depends on the gradation of the underlying offense.

Prosecutors can bring Hate Crime allegations whenever a defendant either:

• Intentionally selects an alleged victim; or
• Decides to commit a crime;
• Based on the defendant's belief or perception regarding the alleged victim's race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability or sexual orientation.

Notably, the defendant's belief about the alleged victim's characteristic does not need to be true. However, the mere fact that the alleged victim possessed one or more protected traits does not, by itself, rise to the level needed to prove a Hate Crime.

Examples of conduct that may give rise to Hate Crime charges include:

• Attacking someone based on their race;
• Harassing a co-worker based on their religion; and
• Burning down someone's house because they are in a same-sex relationship.

Often, prosecutors bring a Hate Crime charge in conjunction with one of the following underlying offenses:

• Assault,
• Aggravated Assault,
• Menacing,
• Reckless Endangerment,
• Strangulation,
• Manslaughter,
• Murder,
• Stalking,
• Rape,
• Criminal Sex Acts,
• Aggravated Sexual Abuse,
• Unlawful Imprisonment,
• Kidnapping,
• Coercion,
• Criminal Trespass,
• Burglary,
• Criminal Mischief,
• Arson,
• Petit Larceny,
• Robbery,
• Harassment, and
• Aggravated Harassment.

There are several defenses to Hate Crimes which, if successful, will either result in a not guilty verdict on all offenses or negate any effect of the Hate Crime allegations on the defendant's sentence. The most common defenses include the following:

• The prosecution failed to prove each element of the underlying offense beyond a reasonable doubt;
• The defendant was unaware that the alleged victim possessed a protected trait; and
• The defendant did not select the alleged victim or decide to carry out the alleged offense based on the victim's protected characteristic.

Hate Crime allegations are separate criminal offenses brought along with an underlying offense. For example, if the underlying offense was a "violent felony offense," the hate crime will also be graded as a separate violent felony offense. Otherwise, if the underlying offense was a misdemeanor or a Class C, D or E felony, the hate crime will be graded one category higher than the underlying offense. If the underlying offense was a Class B felony, the maximum sentence will be either 4, 6, 8, 10, or 12 years. And, if the underlying offense was a Class A-1 felony, the minimum term of incarceration is not less than 20 years.

If you have recently been charged with a crime and prosecutors are alleging that you committed the offense as a Hate Crime, reach out to the dedicated New York criminal defense attorneys at Tilem & Associates, P.C. for immediate assistance. At Tilem & Associates, P.C., our team of attorneys have a long history of aggressively defending individuals charged with serious felony and misdemeanor offenses, including Hate Crimes. In our experience, often, prosecutors bring these charges when there is little to no evidence suggesting the crime—if it occurred—was based on discrimination or malice. We are immediately available to meet with you to get started working on a compelling defense to the charges you face. To learn more, and to schedule a free consultation today, call 877-377-8666. You can also reach us through our online contact form.