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Rapper Seeks to Have Assault Conviction Thrown Out

Defense says mention of “hate crime” in DA’s opening statement not backed by any testimony

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“Citing “prosecutor­ial misconduct” and a judge’s “erroneous rulings,” the defense in a Brooklyn assault case that was originally charged as an anti-LGBTQ hate crime has asked that the defendant’s conviction be vacated and he be granted a new trial.

“The prosecution went forward and opened to the jury in a highly inflammatory opening statement that the defendant committed these assaults because of an anti-gay bias — making this a hate crime — prejudiced the defendant’s right to a fair trial,” Barry Krinsky, the attorney for James Thomas, wrote in a motion that was submitted to Donald Leo, the Brooklyn Supreme Court judge who heard the case, as Thomas was about to be sentenced on December 12.

Thomas, 34, faced multiple felony and misdemeanor assault charges with some charged as hate crimes. He was convicted on November 21 on first-degree assault and other charges, though at that point all of the hate crime charges had been dismissed because witness testimony did not support them.

In March 2017, Thomas attacked three men in a restaurant near Langston, an LGBTQ nightclub in Brooklyn. He slashed one man’s face with a knife, a wound that required 18 stitches, and stabbed a second. That second man required stitches and was held overnight in the hospital. Thomas pushed the third man and menaced him with the knife. He surrendered to police soon after the attack.

Only two of the three victims testified at trial. Krinsky’s argument is that the hate crime charges, which were still in place against the third victim who did not testify at trial, permitted the prosecutor’s opening statement, but were ultimately not supported because that third victim did not testify. The third man was on the district attorney’s witness list. During the trial, the assistant district attorneys on the case said on the record that they believed that the third man had been persuaded by friends of the defendant to not testify.

Krinsky, who declined to speak with Gay City News following the December 12 proceeding and did not respond to a phone call seeking comment, argued that the Brooklyn district attorney knew that the third man would not testify, but proceeded with the opening statement that referenced the hate crime charges.

“[The third man] was not going to testify and therefore the people would not be able to sustain the hate crime charges,” Krinsky wrote. “There would be no evidence to support those charges and therefore the people should [have been] precluded from arguing to the jury that this was an anti-gay hate crime.”

Defense attorneys dislike hate crime charges and will often aggressively fight to get them dismissed because they can inflame juries.

Krinsky noted in the motion that he raised these same issues during the trial, but that Leo declined to dismiss the case and order a new trial. It is unlikely that Leo will now reverse course and agree with Krinsky’s motion. While Krinsky raises what may be an interesting legal issue, such motions can also be pro forma exercises filed by defense attorneys to preserve legal issues and their client’s rights for a later appeal.

Thomas aspired to be a rapper and performed using the stage name Mousey Baby. He appears to have had little success.

The Brooklyn district attorney has until January 4 to respond to Krinsky’s motion and the case will be before Leo on January 11.

Updated 10:51 am, December 19, 2018
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