Legal Aid Society, Kew Gardens (Michele Maxian and Michelle Gelernt of counsel), for defendant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Parmelee of counsel), for plaintiff.
Jeffrey M. Atlas, J.
The defendant has been indicted for assault in the third
degree as a hate crime.I n a pretrial motion, the defendant seeks dismissal of the indictment by challenging the constitutionality of the recently enacted Hate Crimes Act of 2000 (Penal Law §§ 485.00-485.10). Sections 485.05 and 485.10 of the Penal Law, as they apply in this case, enhance the penalties for assault in the third degree by elevating that crime from a misdemeanor to a felony when it has been proved that the offender committed the crime of assault in the third degree and intentionally selected the victim because of a belief or perception regarding the sexual orientation of the victim.  The defendant claims that this new statute is unconstitutionally vague. In particular, the defendant claims that the statute provides insufficient notice of prohibited conduct and permits arbitrary and discriminatory enforcement. For the following reasons, the motion is denied.
Early in the morning of October 22, 2000 the complainant was returning to his East Village apartment after having spent the preceding hours with his friends at a neighborhood bar frequented by gay men. According to the complainant, as he crossed the street not far from the bar, he was confronted by the defendant, a complete stranger to him, who attacked the complainant without warning. The complainant contends that he was injured when the defendant punched him in the face, knocked him to the ground, and struck him a number of times. The complainant also states that during the entire incident he heard the defendant repeatedly curse at him, call him a " faggot," a " degenerate," and ask him " how could you walk around like that?" The complainant ultimately stopped the attack and shouted for help. The defendant walked away, but was stopped not far off and identified by the complainant. The defendant was arrested for assault. According to the police, after his arrest, the defendant attributed his behavior to his anger over hearing assertions made during a radio talk show about gay men molesting children. The defendant is alleged to have told the police that he had decided to take out his anger on the complainant whom he perceived as a gay man.
The Grand Jury, having heard the testimony of the complainant and the police, indicted the defendant for the crime of assault
in the third degree as a felony pursuant to section 120.00 (1) of the Penal Law and the hate crime provisions (Penal Law § 485.05  [a]; § 485.10 ).
It is of course the burden of the defendant to establish the unconstitutionality of the sections in question. " An enactment of our Legislature is presumed to be valid and the heavy burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate the statute." (People v Bright, 71 N.Y.2d 376, 382  [citations omitted].) Moreover, " [i]n a challenge to the constitutionality of a penal law on the grounds of vagueness, it is well settled that a two-pronged analysis is required. First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement." (Id.) Finally, in general, a vagueness challenge must be evaluated in light of the facts before the court and the court will not strain to imagine hypothetical or marginal situations in which the application of the statute is not so clear (People v Nelson, 69 N.Y.2d 302, 308 ).
With respect to the first issue to be resolved, our courts have often said that the requirement that a penal statute provide adequate notice of the conduct it prohibits is to make certain that " citizens who desire to obey the statute will have no difficulty understanding it" and that no person be punished for conduct that could not have been reasonably understood as prohibited (Colten v Kentucky, 407 U.S. 104, 110 , quoting Colten v Commonwealth, 467 S.W.2d 374, 378 ). Thus, " due process requires that a penal statute be sufficiently definite by its terms so as 'to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.' " (People v Bright, supra at 382-383, quoting United States v Harriss, 347 U.S. 612, 617 .)
In this case no attack is made, nor can one reasonably be made, challenging the assault statute on any constitutional ground. The challenge here is addressed to the enhancement law known as the Hate Crimes Act. In my view the language of that Act is clear and can be reasonably understood by all citizens to prohibit certain kinds of attacks made against others who have been selected by the offender because of a perception as to the victim's special vulnerability, appearance, or background. As the Legislature noted in findings ...