Last October, the Brooklyn DA's office charged three men with murder as a hate crime after a gay man they had lured, beat, robbed and chased into traffic died from his injuries. But now the trio's lawyers claim that it was not a hate crime, but a crime of opportunity.

Anthony Fortunato, John Fox, and Ilya Shurov are on trial for the murder of 29-year-old Michael Sandy; the three went to a gay chat room to lure Sandy to Plum Beach. Gerald DiChiara, one of the defense lawyers, wrote, "He was targeted because he would (a) come alone, (b) bring drugs and/or money for drugs with him, (c) go to a deserted spot and (d) probably not offer much resistance...Consequently, the crimes alleged are not crimes of hate but rather crimes of opportunity." The NY Times noted how prosecutor Seth Lieberman answered:

In his response, Mr. Lieberman began with an end run around the defense motion: He conceded that the grand jury had seen no evidence of hatred for gay men, but argued that Justice Konviser-Levine had approved the indictment, thus implicitly rejecting the same defense arguments.

In addition, he argued, if lawmakers had intended to make prosecutors prove defendants hated their victims, the Legislature would have said so in the law’s final language.

“By contrast with New York State,” Mr. Lieberman wrote, “other states have hate crime statutes that require evidence of bias, animus or prejudice.”

Citing legal scholars, he suggested that hate crime prosecutions without evidence of hatred could benefit society. As in the era of racially motivated lynching, he noted, prosecutors could alter perceptions of vulnerability among certain groups and impunity among others.

What's interesting is the DiChiara suggested that if hate crimes didn't have to have the hate proven, then crimes against the elderly, women and immigrants could hypothetically then be classified as hate crime - because age was added to the NY State definition of a hate crime in 2000.