| People v Ortiz |
| 2008 NY Slip Op 00858 [48 AD3d 1112] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v Yalidsa Ortizand Carmen Vega, Respondents. |
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Appeal from an order of the Monroe County Court (Frank P. Geraci, Jr., J.), entered April 5,2007. The order granted the motion of defendants insofar as it sought in the alternative to reducethe indictments.
It is hereby ordered that the order so appealed from is unanimously reversed on the law, themotion is denied, the indictments are reinstated and the matter is remitted to Monroe CountyCourt for further proceedings on the indictments.
Memorandum: We agree with the People that County Court erred in granting the motion ofdefendants insofar as it sought in the alternative to reduce the indictments charging them withassault in the third degree as a hate crime (Penal Law § 120.00 [1]; § 485.05 [1] [a])to assault in the third degree based on its determination that the evidence before the grand jurywas legally insufficient to establish the hate crime element of that charge. The grand juryevidence established that defendants were strangers to the victims; the crime was unprovoked bythe victims; defendants began to beat the victims after inquiring about the victims' relationship;both during and after the incident, defendants repeatedly made derogatory comments concerningthe sexual orientation of the victims; and they spat on one of the victims as they fled the scene.Viewing the evidence before the grand jury in the light most favorable to the People, weconclude that such evidence, " 'if unexplained and uncontradicted, would warrant conviction of' "assault in the third degree as a hate crime (People v Bello, 92 NY2d 523, 525 [1998];see generally People v Swamp, 84 NY2d 725, 730 [1995]). Present—Scudder, P.J.,Hurlbutt, Lunn, Green and Gorski, JJ.