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People v. Assi

March 26, 2009


Defendant appeals from a judgment of the Supreme Court, Bronx County (Steven Lloyd Barrett, J.), rendered May 1, 2003, convicting him, after a jury trial, of attempted arson in the third degree as a hate crime, criminal mischief in the third degree as a hate crime, criminal possession of a weapon in the third degree (two counts) and aggravated harassment in the first degree, and imposing sentence.

The opinion of the court was delivered by: Acosta, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Peter Tom, J.P., Karla Moskowitz, Rolando T. Acosta, Helen E. Freedman, JJ.

Ind. 4848/00

In this appeal we are required to examine the Hate Crimes Act of 2000,*fn1 including the effective date of the legislation and whether to limit prosecutions under the Act to crimes committed against an actual person rather than against a building, such as a synagogue.

At about 10 o'clock on Saturday night, October 7, 2000 (the day before the start of Yom Kippur, the holiest day on the Jewish calendar, the live-in custodian of the Conservative Cong. Adath Israel of Riverdale, in the Bronx, checked the synagogue's door before retiring for the night. The door was intact and undamaged.

At about 3:00 A.M. on October 8, the night patrol supervisor for the 50th precinct and his driver noticed a red Honda parked on the northbound service road of the Henry Hudson Parkway, approximately 250 feet from the synagogue entrance. Prominently displaced in front of the synagogue was a 6-foot-by-6-foot Star of David, visible from the service road.

The instincts of the officers were piqued because the Honda was parked in an area that was desolate, with no commercial establishments nearby, and because Hondas were frequently stolen in that area. The officers watched the Honda from a concealed location, and a few minutes later it drove off southbound on the Parkway service road. The officers resumed patrol, and approximately six minutes later returned to the area where they again saw the Honda parked near the synagogue, this time discharging passengers who walked toward the synagogue. The Honda left and the officers followed it across the parkway, while running its license plate number through the police car's computer.

At a stop light, the Honda's driver, Mohammed Alfaqih, waved the police over and asked for directions to Manhattan. That question further aroused the officers' suspicions, since the driver had been heading south toward Manhattan just minutes earlier. When the computer indicated the car was legally registered to Ida Alfaqih with a Yonkers address, the police sent the driver on his way. About 10 minutes later, the officers saw the three passengers walking away from the synagogue, but did not stop them; from all appearances, they had committed no crime.

At 7:45 that morning, a congregant of the synagogue arrived and discovered the left glass panel of the entrance door shattered in a web pattern. Two flame-charred bottles of Devil's Spring vodka lay outside the door - one shattered and the other intact containing a purplish liquid - as well as several small rocks. Both bottles had charred wicks protruding from their necks. The congregant awoke the live-in custodian and they called the police.

Police officers arrived shortly thereafter and secured the crime scene. Detectives removed the charred bottles and wicks, the rocks, a number of purple-stained latex gloves, and purple towels*fn2. That night, after retrieving the license plate number of the Honda and the owner's address from the police computer data bank, officers viewed a surveillance tape of the Honda and its passengers. The police culled 40 still photographs. The sergeant and his driver on patrol that night identified Alfaqih as the driver.

Later that day detectives went to the liquor store nearest to Alfaqih's home in Yonkers and showed the still photographs to the sales clerk. The clerk could not identify Alfaqih, but recognized defendant from the neighborhood, and was reasonably certain that defendant had purchased two bottles of Devil's Spring vodka on the evening of October 7, 2000.

Alfaqih was arrested the following day, and a search of the Honda produced a purple towel and more latex gloves, which were submitted for laboratory analysis. The analysis determined that one of the wicks had been torn from the purple towel. Shortly after Alfaqih's arrest, defendant was spotted in Yonkers and was also arrested. Defendant was read his Miranda rights, which he waived. At the precinct, after he was again read his Miranda rights, defendant first orally and then in writing gave an account of his actions on the night in question without any references to the synagogue. One of the interviewing detectives threw the written statement into the garbage, declaring that it was "bullshit," and told defendant ...

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