The Shmulevich Case — Facts and New York Law, as I Can Best Figure Them Out:

Stanislav Shmulevich was arrested Friday, apparently for
stealing two Korans (in two separate incidents) from a Pace University “meditation room,” throwing them into Pace toilets, and defecating on one of them. I’ll have more on the constitutional and policy questions raised by this arrest in an upcoming post. Here I’d like to just summarize the facts and the relevant New York criminal law, as best I can figure them out.

If the factual reports are true, then Shmulevich is indeed guilty of theft, and may be guilty of some offense related to risking damage to the toilets (though I’m skeptical on that latter count, unless he was deliberately attempting to damage the toilets). But apparently he’s risking a much more serious punishment, because the book he stole was the Koran, and presumably because he is seen as being motivated by hostility to Islam. From the AP story cited above:

Stanislav Shmulevich of Brooklyn was arrested on charges of criminal mischief and aggravated harassment, both hate crimes, police said….

Muslim activists had called on Pace University to crack down on hate crimes after the [Koran-in-toilet] incidents [which happened months ago]. As a result, the university said it would offer sensitivity training to its students.

The school was accused by Muslim students of not taking the incident seriously enough at first. Pace classified the first desecration of the holy book as an act of vandalism, but university officials later reversed themselves and referred the incident to the New York Police Department’s hate crimes unit.

The incidents came amid a spate of vandalism cases with religious or racial overtones at the school. In an earlier incident on Sept. 21, the school reported another copy of the Quran was found in a library toilet, and in October someone scrawled racial slurs on a student’s car at the Westchester County satellite campus and on a bathroom wall at the campus in lower Manhattan….

Ibrahim Hooper, a spokesman for the national CAIR office in Washington, D.C., … said CAIR decided to speak out about the Pace incidents because Muslim students are impacted by the creation of what could be viewed as a hostile campus environment.

Now the only DA’s complaint that I’ve seen in this case deals only with the criminal mischief charge, and not with the aggravated harassment charge; so there might be something I’m missing as a result. But here’s my best sense of the matter:

1. Because Shmulevich is being accused of “hate crimes,” he is facing punishment that’s “one category higher than” it would normally have been. This means, for instance, that if stealing and destroying a book and risking damage to a toilet is a misdemeanor, the “hate crime” version of this is a class E felony — potentially a pretty substantial sentence enhancement.

2. “[H]ate crime” is defined by New York law as a crime in which the offender

(a) intentionally selects the person against whom the offense is
committed or intended to be committed in whole or in substantial part
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, regardless of whether the belief or
perception is correct, or

(b) intentionally commits the act or acts constituting the offense in
whole or in substantial part 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, regardless
of whether the belief or perception is correct.

Subsection (a) — essentially discriminatory choosing the target of a crime — is what most hate crime prosecutions seem to be about. It’s also the sort of provision that the Supreme Court unanimously upheld against First Amendment challenge in Wisconsin v. Mitchell (1993). But it’s pretty clear that Shmulevich isn’t guilty under this provision, because his victim was Pace University, which he didn’t choose because of its religious affiliation. It appears that if Shmulevich is guilty, he’s guilty under subsection (b), presumably because he committed the crime against Pace University because of “a belief or perception regarding the … religion … of a person” other than Pace — according to the complaint, because “he committed the acts out of anger toward a group of Muslim students with whom he had had a recent disagreement.”

3. So that’s the hate crimes enhancement provision; what about the underlying crimes? Here’s the New York fourth-degree criminal mischief provision, which is charged in the complaint, and which indeed seems like the only relevant criminal mischief provision: “A person is guilty of criminal mischief in the fourth degree when,
having no right to do so nor any reasonable ground to believe that he
has such right, he … [i]ntentionally damages property of another person” — presumably Pace’s Korans. (It sounds like he didn’t damage, or intentionally attempt to damage, the toilets, though he may have recklessly created a situation in which they might have ended up damaged.) So it sounds like stealing and damaging a book is a class A misdemeanor, while stealing and damaging a book because of someone’s (not the victim’s, but someone’s) religion is a class E felony.

But when it comes to aggravated harassment, I can’t see what the charge might be, and perhaps no such charge has been filed (despite what the AP story says), given that the only complaint I’ve seen mentions only criminal mischief. Here is what the aggravated harassment statutes say, in relevant part:

A person is guilty of aggravated harassment in the second degree [a class A misdemeanor] when,
with intent to harass, annoy, threaten or alarm another person, he or
she:
1. Communicates, or causes a communication to be initiated by
mechanical or electronic means or otherwise, with a person, anonymously
or otherwise, by telephone, or by telegraph, mail or any other form of
written communication, in a manner likely to cause annoyance or alarm;
or
2. Makes a telephone call, whether or not a conversation ensues, with
no purpose of legitimate communication, or
3. Strikes, shoves, kicks, or otherwise subjects another person to
physical contact, or attempts or threatens to do the same because of the
race, color, religion or national origin of such person; or
4. Commits the crime of harassment in the first degree and has
previously been convicted of the crime of harassment in the first degree
… within the preceding ten
years. [Harassment in the first degree is in turn defined as “intentionally and repeatedly harasses another person by following such
person in or about a public place or places or by engaging in a course
of conduct or by repeatedly committing acts which places such person in
reasonable fear of physical injury.”]

A person is guilty of aggravated harassment in the first degree [a class E felony] when
with intent to harass, annoy, threaten or alarm another person, because
of the race, color, religion or national origin of such person he:
1. Damages premises primarily used for religious purposes, or
acquired pursuant to section six of the religious corporation law and
maintained for purposes of religious instruction, and the damage to the
premises exceeds fifty dollars ….

These items all seem inapplicable here. There is no telephone, telegraph, or written communication. (I suppose throwing a Koran in the toilet is a form of communication, but not what one would call a “written” one.) There is no telephone call. There is no physical contact with another person, or attempted or threatened physical contact. There is no repeated following or repeated asks that place a person in reasonable fear of physical injury (even if Shmulevich has some past conviction for such a crime, which I’ve seen no evidence of). And there’s no damage to premises primarily used for religious purposes, since “premises” means a place (see, e.g., Black’s Law Dictionary); the damage here was to a religious book, not a religious premises.

So that’s all I’ve got as to the facts and the New York law; more in an upcoming post, as promised, on the constitutional and policy questions. Allahpundit at Hot Air has more.