People v. Ortiz , 851 N.Y.S.2d 784 ( 2008 )

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 reduce the indictments.

It is hereby ordered that the order so appealed from is unanimously reversed on the law, the motion is denied, the indictments are reinstated and the matter is remitted to Monroe County Court for further proceedings on the indictments.

Memorandum: We agree with the People that County Court erred in granting the motion of defendants insofar as it sought in the alternative to reduce the indictments charging them with assault 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 jury was legally insufficient to establish the hate crime element of that charge. The grand jury evidence established that defendants were strangers to the victims; the crime was unprovoked by the victims; defendants began to beat the victims after inquiring about the victims’ relationship; both during and after the incident, defendants repeatedly made derogatory comments concerning the 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, we conclude 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.