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[*1]


Decided on March 24, 2006
Supreme Court, Queens County

2098/04
James P. Griffin, J.
By submitting the bare affirmation of George J. Farrugia, Esq., dated January 27, 2006, without any Notice of Motion, the People move pursuant to Criminal Procedure Law section 200.70 for an order permitting amendment of count one of the instant indictment so that the words "Carol Brady" are replaced with "Carol Brady as legal custodian for and acting in loco parentis on behalf of the minority student population at PS 256."
The defendant submits the response of Ronald S. Nir, Esq., dated March 11, 2006, in opposition to the relief sought by the People and cross-moves to dismiss count one of the indictment, also without the appropriate notice of motion. Neither party has raised any procedural objection to the form of the motion papers themselves; accordingly, this issue will be overlooked by the Court.
BACKGROUND
The defendant is accused in this indictment with four crimes: (1) Criminal Mischief, Fourth Degree, as a Hate Crime, (2) Criminal Mischief, Fourth Degree, (3) Making Graffiti, and (4) Possession of Graffiti Instruments. It is alleged that on March 12, 2004, the defendant, a teacher at PS 256, wrote with a black marker the words "nigger", "fuck", and "pussi" on the walls of a female bathroom on the third floor of PS 256.
Count one of the indictment, the only count which the People seek to amend, reads as follows:
The Grand Jury of the County of Queens by this indictment, accuse the defendant of the crime of Criminal Mischief in the fourth degree as a Hate Crime committed as follows: The defendant, on or about March 12, 2004, in the County of Queens, having no right to do so nor any reasonable ground to believe she had such right, intentionally selected Carol Brady 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 of Carol Brady, 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 of Carol Brady, regardless of whether the belief or perception was correct. [*2]
On the record, in open court, the People limited the statutory underpinning of this count to Penal Law section 485.05 (1)(b), eliminating the need for the language underlined in the quote shown above. (Transcript of proceedings before Hon. Stephen Knopf, January 18, 2006, p. 11, line 7 through 25, and p. 12, lines 1 through 3). As noted, the people now seek to change the words "Carol Brady" to "Carol Brady as legal custodian for and acting in loco parentis on behalf of the minority student population at PS 256".
ANALYSIS
(1)
Section 200.70 of the Criminal Procedure Law reads as follows:
1. At any time before or during trial, the court may, upon application of the people and with notice to the defendant and opportunity to be heard, order the amendment of an indictment with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits. Where the accusatory instrument is a superior court information, such an amendment may be made when it does not tend to prejudice the defendant on the merits. Upon permitting such an amendment, the court must, upon application of the defendant, order any adjournment of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense.
2. An indictment may not be amended in any respect which changes the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed it; nor may an indictment or superior court information be amended for the purpose of curing:
(a)
A failure thereof to charge or state an offense; or

(b)
Legal insufficiency of the factual allegations; or

(c)
A misjoinder of offenses; or

(d)
A misjoinder of defendants.


The defendant argues that the proposed amendment would, indeed, change the theory of the prosecution because the indictment specifies Carol Brady as the specific person about whose "race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation" the defendant had formed beliefs or perceptions which allegedly motivated the underlying crime of Criminal Mischief.
Further, the defendant claims that the Hate Crime statute, Penal Law section 485.05, specifies that the hate crime "must be directed at a person." (Nir response, p. 1). Based on that, the defendant 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 homogeneous in nature; the examples she provides are the NAACP, the Congress of Racial Equality, Gay and Lesbian Pride, and the Jewish Defense League.
(2)
Section 485.05 (1) (b) of the Penal Law provides, in pertinent part:A person commits a hate crime when he or she commits a specified offense and intentionally commits the [*3]act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.
Contrary to defendant's claim, there is nothing in this statute concerning entities or organizations that are purely homogeneous in nature and the defendant has provided no authority for that proposition.
In fact, both the People and the defendant seem to have misconstrued what the statute requires in order to establish the commission of a Hate Crime.
The identity and number of the person or persons about whom the defendant is claimed to have formed a perception which motivated the alleged underlying crime, here, Criminal Mischief, is irrelevant. The painting of the words "Kill Jews and Blacks" on the walls of a subway is clearly a Hate Crime and that offensive conduct is directed at more than one person; it is a Hate Crime even though the specific person or persons about whom the writer had formed a perception that motivated the Criminal Mischief cannot be identified.
The recommended jury instruction for Penal Law section 485.05 makes this clear. It reads:
In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in this case, beyond a reasonable doubt, each of the following three elements:1. That on or about March 12, 2004, in the County of Queens, the defendant Yolanda Moorjaney, committed the offense of Criminal Mischief in the fourth degree;
2. That the defendant committed the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the (specify appropriate attribute) of a person, regardless of whether the belief or perception is correct; and
3. That the defendant did so intentionally.
(CJI2d [NY] Penal Law 485.05). (Emphasis supplied.)
As the Legislature made clear in the language of Penal Law section 485.00, the victim of a
hate crime is society as a whole - - and it is apparently for that reason that the Hate Crime statute does not require specification of any particular person - - only "a person." It is the attribute of the protected class (i.e., sex, race, sexual orientation, etc.), not the name of any particular individual member or members of that class which is of importance. Accordingly, 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 defendant and not name any particular person or persons; the indictment could simply allege that the defendant committed the underlying crime in whole or substantial part because of a belief or perception of the race, or sex, or sexual orientation, or whatever, "of a person". See also, People v. McDowd, 3 Misc 3d 380 (Sup. Ct., Nassau, 2004), app'l den., 22 AD3d 688, app'l den., 2006 NY Lexis 411 (January 4, 2006).
(3)
As it presently reads, count one of the instant indictment goes beyond what is required. It [*4]names a specific individual, Carol Brady, as the person about whom the defendant formed a belief or perception which motivated the alleged act of Criminal Mischief. Whether the People can amend that language depends upon whether the proposed amendment is supported by the testimony in the Grand Jury and whether the proposed amendment changes the People's theory of the case as reflected in the testimony before the Grand Jury. See CPL 200.70 (2).
There was sufficient evidence presented before the Grand Jury to support the conclusions that the defendant damaged property, that Carol Brady was the lawful custodian of that property, that the damage consisted of the writing of "nigger", "fuck" and "pussi" on the wall in the female bathroom on the third floor of PS 256, 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 people in the school, all the female people in the school, all the black female people, even Carol Brady, a female who works in the school. A motion to amend the indictment to change the words Carol Brady with any of the above or even with the word "person" would be supported by the Grand Jury testimony and would not change the People's theory of the case as it was presented to the Grand Jury.
(4)
However, that is not what the People have sought to do in the instant application. Here they attempt to substitute the words "Carol Brady as legal custodian for and acting in loco parentis on behalf of the minority student population at PS 256" for the words "Carol Brady".
Preliminarily, it is noted that the proposed amendment is to a certain extent nonsensical. When a child is the victim of a crime, it is the child, not the parent of the child or someone standing in loco parentis, 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 defendant is alleged to have formed certain beliefs or perceptions is not the victim.
But more to the point, there is very little, if any, evidence in the Grand Jury testimony to support the allegation that the defendant 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 "Carol Brady as legal custodian for and acting in loco parentis on behalf of the minority students of PS 256".
CONCLUSION
Accordingly, the motion to amend is denied without prejudice. While the indictment is sufficient to proceed to trial in its present form, should the People choose to renew the application for a proposed amendment which is supported by the Grand Jury testimony as noted in the discussion above, they are free to do so.
In addition, as the discussion set forth above shows, the defendant's cross-motion for dismissal of the first count of the indictment is without merit, and is denied.
This constitutes the decision and order of this Court.
Enter order accordingly.
__________________ [*5]

James P. Griffin, AJSC

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