Judge Rules Hate Crimes Law OK for Michael Sandy Murder Case

Source: Gay City News
By: DUNCAN OSBORNE


A judge upheld the Brooklyn prosecutor's use of the state hate crimes law in the 2006 Michael J. Sandy homicide.

"With respect to the constitutional motion, that motion is denied in its entirety," said Jill Konviser, the judge who is hearing the Sandy case, regarding a defense challenge to the prosecutor's application of the law. The ruling came during an August 2 proceeding.

Anthony Fortunato, 21, John Fox, 20, and Ilya Shurov, 21, are charged with two counts of second-degree murder, one as a hate crime, four counts of attempted robbery with two as hate crimes, two manslaughter counts, one as a hate crime, and two assault counts, one as a hate crime.

Allegedly, they lured Sandy, a gay African-American, to an October 8 meeting for sex at Brooklyn's Plumb Beach. They allegedly tried to rob Sandy who fled on to the Belt Parkway where he was struck by a car. Sandy, 29, died on October 13.

In court proceedings, the district attorney has not charged that the three were motivated by anti-gay bias. The fact that the defendants selected a gay man to rob, thinking he would be less likely to resist, made these hate crimes, the prosecutor said.

At a May 30 hearing and in a motion, the defense argued that the Legislature's intent in passing the 2000 hate crime law was to punish crimes motivated by prejudice and the prosecutor's use of the law in the Sandy case violated that intent. In her 18-page written ruling, Konviser rejected that argument.

"The grand jury evidence shows that this is not a case where hate crimes are charged simply because the victim just happened to be of a particular sexual orientation," she wrote. "Rather this is a case where the defendants deliberately set out to commit a violent crime against a man whom they intentionally selected because of his sexual orientation."

The law's legislative findings, or its preamble, refer to crimes "based upon bias and prejudice" and "invidious hatred." The law itself requires that the offense be "committed in whole or in substantial part" based on a "belief or perception" about the victim's membership in one of several protected classes including sexual orientation.

A person commits a hate crime when he "intentionally selects" a victim based on a "belief or perception regarding" the victim's membership in a protected class. Defense lawyers also argued that the law was unconstitutionally vague "as applied" in the Sandy case in that the law does not clearly communicate what the illegal act is. Konviser also rejected that point.

"[W]hen considered in the context of the statute and the facts of this case, these terms sufficiently inform a person of ordinary intellect that if you search the Internet for the express purpose of finding a gay man to rob, a man you believe would 'probably not offer much resistance' you will be charged with a hate crime," she wrote.

Denise Sandy, Michael's mother, said she approved of the ruling after the hearing. "I'm grateful that this is going to stand," she said. Asked if she believed this was a hate crime, Denise said "Yes, definitely."

Konviser was expected to rule on whether the prosecution can use statements Fox and Shurov gave to police, the results from police line ups, and other evidence, but late filings from attorneys delayed that. She will issue a ruling later.

Konviser has set September 10 as a trail start date for Fortunato and Fox. No trial has been set for Shurov who will be tried separately.

At trial, a jury will decide if these were hate crimes and, if they are convicted, the hate crime tag increases the minimum prison sentences the defendants face.

A fourth defendant, Gary Timmins, 16, pleaded guilty to one attempted robbery count as a hate crime last year and is assumed to be cooperating with the prosecution.