Photo by: Spencer T. Tucker/City Hall
Photo by: Spencer T. Tucker/City Hall
By: Chris Giblin
Brooklyn stands as one of the most culturally diverse places in the world. Most of the time, that diversity is celebrated or at least taken in stride as a part of living in the city’s most populous borough. However, Brooklyn also leads the state in hate crimes.
Between the passing of the Hate Crimes Act in 2000 and the end of 2008, Brooklyn led all state counties in hate crime convictions, a trend that appeared to continue through the end of last year.
In 2011, according to data from the New York State Division of Criminal Justice Services, Brooklyn recorded 106 hate crimes, noticeably more than any other county – Nassau came in second with 62. As for the other boroughs, Manhattan had 60, Queens 50, the Bronx 18 and Staten Island recorded eight. Last year followed a trend that has been common in recent years. Over 2007 to 2011, Brooklyn had 576 hate crimes incidents – 31 percent more than Nassau, the next highest county.
It's unclear whether Brooklyn's high number of reported hate crimes reflects a high level of community attention, a greater tendency by Kings County prosecutors to bring such charges or Brooklyn's size and diversity.
It's also unclear whether the hate crimes laws, as currently written, are sufficiently broad to encompass all the bias crimes that occur in Brooklyn or elsewhere.
Meanwhile, some wonder if political pressure and a vague statute have led to crimes being labeled “hateful” when bigotry is not a motive. And of course, there's the question of whether hate crimes prosecutions actually act to reduce hate and deter such crimes from happening in the future.
A history of prosecuting hate
The Brooklyn DA’s office has a history of being tough on hate crime. District Attorney Charles J. Hynes is still well known for his successful prosecution in the 1986 racial attack in Howard Beach that ended in the death of a young black man named Michael Griffith. He was killed by a car on the Belt Parkway after running from three white teenagers who were pursuing him, and each one of those teenagers subsequently served stiff manslaughter sentences. Hynes was elected District Attorney a few years after that and has held his post since 1990.
Around the state, most reported hate crimes don't result in an arrest: Brooklyn recorded the most hate crimes arrests from 2008 to 2011, with 106 such arrests made—one arrest for every four hate crimes incidents.
The process for determining a hate crime is a complicated one, and no one case is clear-cut.
“[Every hate crimes case] is difficult because they’re the only type of case where we have to establish motive,” said a senior assistant district attorney who handles hate crimes in the Brooklyn office.
The investigations carried out by the NYPD Hate Crimes Task Force provide information to the DA’s offices.
“They gather the evidence, and of course, they have a specialization and they have a certain expertise,” says assistant district attorney Mariela Herring, of the Queens DA’s office. “They also come to their own conclusions about a case.”
But prosecutors also try to sniff out crime where hate was a factor.
“If there’s [something] more [to a given case], if there’s an overreaction, if there’s no other motive – if you could have robbed them, but you didn’t; you just assaulted them for no reason, we start looking at that,” Herring says.
Across the city in recent years, hate crimes have usually involved either religious bias (roughly 40 percent of cases) or race or ethnicity bias (another 40 percent) and sexual orientation—along with a small numbers of other bias-types—comprising the remainder of cases.
Brooklyn’s diverse population and recent growth means there’s potential for disputes between different racial, ethnic and religious groups. There are a growing Arab/Muslim community in Bay Ridge, a burgeoning Chinese enclave in Bensonhurst, and distinct Jewish communities in Williamsburg, Borough Park and Crown Heights. Gentrification has brought young, mainly white newcomers to areas long dominated by Latinos and blacks.
With 2.5 million residents, Kings County is the state's most populous, and its high number of hate-crime reports is at least partly explained by its size. On a per-capita basis, Nassau reports the most hate crime (32 cases over the past five years per 100,000 residents) in the state. Brooklyn ranks sixth, with 23 cases per 100,000 people. Clinton and Otsego counties and Manhattan and Staten Island report slightly more cases on a per capita basis than Brooklyn, but 52 counties—including Queens (12 cases per 100,000) and the Bronx (9 cases per 100,000)—report fewer. Brooklyn is home to 32 percent of New York City’s population but reports 43 percent of the city’s hate crimes. One in 12 New York State residents lives in Brooklyn but one in five of the state’s hate crimes occur in the borough.
It’s unclear whether the borough’s ethnic mix explains the relatively high number of hate crimes reports in Brooklyn, or whether more aggressive use of the laws by Brooklyn cops and prosecutors means crimes that might escape the hate-crime label elsewhere are labeled “hate” here.
Nationwide, the disparities are even greater. In 2009, Brooklyn reported more hate crime than 26 states. The 92 offenses in Kings County that year were equal to the combined total reported to the FBI from Alabama, Alaska, Georgia, New Mexico, Iowa and Louisiana. According to the FBI, in 2009 California reported 1,285 hate incidents. Mississippi reported two.
“I think there’s always going to be issues with how things are reported, and I don’t know whether or not it’s because we have a better reporting system or because we chase these cases more aggressively,” says the Brooklyn ADA.
In New York City in recent years, there's been no clear trend on the number of hate incidents or their type. But the age of perpetrators has reportedly been trending downward, to the 12- to 22-year-old range, according to the Brooklyn ADA.
Difficult to prosecute
When it comes to convictions, the difference in raw numbers between Brooklyn and the rest of the state has been stark.
From 2008 to 2011, 59 people were convicted of hate crimes in Brooklyn – more than twice the number convicted in any other county. Suffolk and Nassau had the next most, with 27 apiece (Manhattan had 25, Queens 22, the Bronx 16 and Staten Island had 4).
But Brooklyn's 59 hate crime convictions represent just 13 percent of reported hate crimes during that four-year period (though hate crimes cases can be reported in one year and prosecuted in another.)
Some prosecutors can be hesitant to pursue a hate crime charge because of the unique challenges it involves. Adding a hate crimes count to a murder or assault or robbery case changes the nature of the prosecution, making it about not just what occurred, but also why.
“It’s one of those crimes where we have to prove motive, and we don’t have to prove motive in any other crime,” Queens ADA Mariela Herring says. “So we have to go into the mind of the defendant, which is a very difficult thing to do.”
What's more, Herring says, hate crimes cases take on political overtones and have the potential to exacerbate tension among different communities.
“It’s very important in hate crimes to make the determination of whether it is or isn’t a hate crime based only on the facts,” Herring says. “And there is a lot of pressure. There’s a lot of pressure in the sense of one side may have one opinion, the other side may have another, all while you’re still investigating the case.”
The Queens DA office insists that they have rigorous methods for analyzing the facts, “while being sensitive to the community’s concerns and interests in a case,” as Herring puts it. “There’s a way of handling that [pressure] and you can’t be dismissive, but the fact that we are able to come out of that with an unbiased opinion is what makes a good DA’s office, I think.”
In the case of Ivaylo Ivanov, who was sentenced for an anti-Semitic hate crime in early 2010, community indignation was extremely high because of Ivanov’s distribution of anti-Semitic leaflets and his drawing swastikas all over the heavily Jewish neighborhood of Borough Park. On top of that, he was caught after shooting himself in the hand, leading to a police search of his apartment that revealed him to be in possession of several pipe bombs.
Ivanov’s defense attorney, Bernard Kleinman, believes prosecutors inappropriately linked these two crimes in order to make Ivanov's anti-Semitic sentiments seem more dangerous.
“The DA made Ivanov out to be a substantial threat to the Jewish community because he was distributing leaflets and then he had all these weapons, but there was no connection, no legal connection made between these two,” he said. “And the DA’s office, being a political animal more than anything else, especially in Brooklyn, was more than happy to [prosecute the case the way they did].”
Kleinman believes the way the hate crimes statute was applied to Ivanov was unconstitutional, claiming that his client was generally “just spewing this vitriol, but he was doing it to anybody who was there,” rather than targeting and threatening Jews. Even if his message was entirely anti-Semitic, “he was just exercising his First Amendment rights.”
The Brooklyn ADA with hate crimes prosecution experience notes that Ivanov did more than voice his political sentiments: He spray-painted them all over a predominantly Jewish neighborhood. And he denies that his office linked the hate crime charges and weapons possession counts.
Media plays a role
The case of “Fat Nick” Minucci in Queens also garnered a lot of community and media attention. Minucci was sentenced in 2006 to up to 15 years in prison for saying a racial epithet while attacking a black man, Glenn Moore, with an aluminum baseball bat in Minucci's home neighborhood of Howard Beach. Moore’s skull was fractured in the attack. Minucci also robbed Moore of his sneakers and some clothing he was carrying.
“In [Minucci’s] case, there was a lot of media attention,” Herring said. “The media attention starts with the committing of the crime, so that in some instances, the media attention may almost interfere with the investigation.”
But Herring adds, “Minucci was caught within a day though, so there wasn’t too much interference.”
Minucci’s lawyer Albert Gaudelli, however, believes the media had significant influence on the case. The eventual sentence “was clearly excessive, and it was pandering to the media,” he says. “There’s no question [the prosecution] was reaching. And prosecutors are susceptible to exposure in the media and if they can milk something, then they do, and they did.”
Big issues of contention in the case included whether Minucci should have been granted lenience due to his perception that he had to “defend his turf” from outsiders he thought might be a threat, and whether or not he used the n-word in the historically derogatory sense of the term, or as an informal street greeting. The prosecution prevailed.
After the conviction, Queens DA Richard Brown told reporters: “When Nick Minucci picked up that aluminum bat on June 29, 2005, he raised that bat not only against Glenn Moore but against every other resident of this city.”
But Minucci's lawyer maintains that the sentence was inappropriate.
“[Nicholas Minucci’s conviction and sentencing] was an aberration,” Gaudelli contended. “I’m not saying what he did was right, wrong or indifferent. What I’m saying is, the newspapers and the media tried to turn it into a massive hate-crime thing, and it was really just that he was a misguided youth who thought he was protecting his neighborhood.”
When is it hate?
Sometimes, it has been unclear as to whether or not hate crime convictions featured criminals who were looking to target a specific group due to hatred or merely engaged in criminal opportunism.
In Queens, several people have been convicted of hate crimes against the elderly for ripping them off, taking advantage of their kindness and juicy savings accounts. One was Alexandra Gilmore, who found a way to steal $800,000 from a 93-year-old man in 2009. She received a two to six-year sentence but was released after serving less than one year for good behavior. Another was Wando Delmaro, who continues to serve a 10-year prison sentence that began in 2006 for posing as a water-company employee and occupying elderly people while accomplices burglarized their homes.
By pursuing hate crimes charges in those cases, Queens prosecutors increased the prison time at stake: Theft of less than $1 million does not carry a mandatory prison sentence, but if it’s a hate crime, the sentence is at least a year and up to 25.
“We try really hard to distinguish [hate and criminal opportunism],” says Seth Marnin, an attorney with the Anti-Defamation League, which has drafted a considerable amount of the hate-crime legislation that has been adopted throughout the country. “When it is a crime of opportunity, we don’t really think that is a hate crime. But I don’t think that’s what we usually see when we see prosecution.”
The broad language included in New York state’s Hate Crimes Act does not necessarily require hatred for a hate-crime conviction to occur. A hate happens when a crime is committed “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,” according to the statute.
“There are certainly cases that are complicated,” Marnin says. “The Michael Sandy case is an example of that.”
The Sandy case occurred on an October night in 2006, when a gay man, Anthony Fortunato, led three of his friends, John Fox Jr., Ilya Shurov and Gary Timmins, to Sheepshead Bay to meet with Sandy, whom Fortunato had lured there for sex. The four men later said they intended to rob Sandy. It remains in dispute as how violent and intimidating their behavior was, but it led to Sandy fleeing towards the Belt Parkway, where he was hit by a car. He died five days later.
The prosecution argued that it was a hate crime, in which a group of friends targeted a gay man because it would be easier to steal from him before they assaulted him and chased him to his death on the highway. Defense attorneys argued it was a crime of opportunism, since the four men went to meet up with Sandy to smoke marijuana and ask for his money. They also pointed to Fortunato’s homosexuality as proof that hate could not have been an element in their crime. In the end, the prosecution won the cases handily, and the defendants—aside from Timmins, who was able to reduce his sentence by agreeing to testify as a prosecution witness—continue to serve long prison terms ranging from seven to 21 year.
The Sandy case, says Marnin, was one in which “a gay man was targeted because of the perpetrator’s belief, also as a gay man,that gay men tend to be weaker and less able to fight back. It became a complicated process to parse out what the motivation of the crime was.”
The father of one of the men convicted in Sandy's death claims the media attention and political weight of the case influenced the jury.
“There was plenty of pressure behind the scenes,” says John Fox Sr., whose son, now 25, is serving 11 to 21 years for the events of the night. “My son was just standing there [during all this]… They used the legislation because they could, not because there was hate involved.”
Eric Zaccar, the jury foreman for the Fortunato case, who has since written a screenplay based on the events of the case called Without Hate, claims that the event was used as an excuse to “test the [hate crimes] legislation in a high-profile case.”
According to Zaccar, while all jurors agreed that Fortunato was guilty of the misdemeanor petit larceny, they were deadlocked on the other charges he faced, including Manslaughter as a Hate Crime with Zaccar as the lone holdout. He now says he changed his vote to “guilty” on that charge only to avoid causing a mistrial, which he believed would lead to Fortunato being prosecuted again.
Zaccar unsuccessfully attempted to renounce his lone guilty vote immediately. “I wrote a five-page letter to the judge explaining what happened, and Anthony [Fortunato]’s lawyer was sure that this would get the verdict thrown out,” he says. “None of the other jurors thought it was a hate crime either and they all felt like they had no choice except to vote that way, by the letter of the law.”
“In order for any cause to go forward, some pawns have to be sacrificed for it, and I think that’s what happened in this case,” Zaccar says. “The [hate crimes laws] should be on the books, but they should be used more intelligently.”
After the trial, the victim's father told the New York Times he hoped the convictions would be for the best: “Things like this shouldn’t happen. Hopefully something greater will come out of it.”
Questions of scope and effectiveness
While lawyers and family members of people convicted of hate crimes criticize the way the law is used, victims of bias attacks and their advocates say the laws can make a big difference in recovering from crimes with uniquely personal dimensions.
David Pittock is a hate crime victim who says that if the criminals who hurt him were ever caught, he wouldn’t hesitate to pursue a hate crime charge.
Pittock was savagely attacked by two men after leaving a gay establishment in Williamsburg in 2010. They yelled “faggot” and other anti-gay vitriol before taking his wallet and leaving. Pittock was left bloodied and bruised, needing reconstructive surgery on the right side of his face the next day.
“I’m from Nebraska originally, and I really didn’t think of this as a problem as much here in New York City,” he said. “You see all those reports on the news but I didn’t really think much of them. I was like, ‘Oh, that’s not gonna happen to me. This is New York City.’ But after it happened to me, I was like, ‘Wow, this is a problem.’”
Herring suggests that a hate crimes prosecution can help an affected community move forward by signaling that such crimes will not be tolerated.
“The whole point of having hate crime legislation is because the impact on the community is so different than any other crime,” Herring says. “I mean, [other crimes may] have a negative impact on the community, but it brings a community together. In a hate crime, it polarizes a community.”
The ADL's Marnin agrees: “I think that the hate crimes laws give some comfort to communities who have been targeted; that there are laws that explicitly address that behavior.”
But there is still debate on whether the states' hate crimes law is too vague, or not inclusive enough. Michael Silverman, executive director of the Transgender Legal Defense and Education Fund, argues that gender identity needs to be incorporated into the list of protected groups mentioned in the legislation.
“I do think that adding gender identity to the list of enumerated categories in New York State’s hate crimes law would send a powerful message,” he said. “And that message is that the state, and by extension, the people of the state of New York, will not tolerate hate crimes against transgender New Yorkers.”
On the other hand, there is the criticism that the law is too vague and can be applied in crimes where there's no actual hate.
“I think that the language that the legislature chose is vague, and I think that that vagueness allows it to be applied in far too broad of a manner,” Kleinman says. “I believe that hate crimes legislation is fine… but if it’s applied on such a broad basis, it hurts the quality of the law.”
Pittock says his participation in support groups at the Anti-Violence Project, an anti-LGBTQ violence organization based in Chelsea, has been helpful in his recovery—particularly in recognizing that he isn’t the only one who’s survived such an appalling experience. He’s also spoken out in the community about what happened to him, aiming to promote tolerance. Ejeris Dixon, deputy director of AVP, sees those kinds of efforts as more likely than prosecutions to reduce hate crimes in the future.
“Personally and as an organization, we don’t see hate crimes legislation as the vehicle to end the culture of hate violence and homophobia and trans-phobia in our culture,” she says. “I think finding ways to address those issues of hate, like creating conversations in the media and schools, can get to the root of the problem.”