Here's a news release from attorney Yetta G. Kurland about lesbian chef Josie Smith-Malave, originally of Miami.
Download Complaint.pdf to read the complaint.
Josie Smith-Malave along with another victim of the gay bias hate crime that took place on September 1, 2007 in Sea Cliff, New York, filed a complaint today alleging that the Nassau County Police Department failed to properly handle the matter and have failed to charge suspects with hate crime assault
Civil Rights Attorney Yetta G. Kurland of the law firm Kurland, Bonica & Associates, P.C., today announced that her clients, Top Chef Contestant Josie-Smith Malave and Emily ‘Scout’ Durwood, the victims of a vicious bias attack in Sea Cliff, on Long Island over Labor Day weekend, filed a Civilian Complaint today against the Nassau County Police Department, alleging that the Department acted improperly in the initial response to the matter and most recently accusing authorities of dragging their feet and refusing to arrest and charge their attackers.
“I thought I could trust our system, and I wanted to believe that the Nassau County Police Department would recognize the utter disregard of local authorities to properly investigate this case, and understand the severity of my attack, but I was woefully wrong,” Smith-Malave said.
“It was bad enough what happened on September 1st, but I am even more disheartened by how poorly this matter is being handled,” she continued. “I have since given statements, traveled repeatedly to meet with authorities, and both I and another victim have identified attackers in photo lineups more than a month ago. And yet, still nothing has been done, not one of the residents of Sea Cliff who took part in this attack has been properly charged.”
Added her friend Emily “Scout” Durwood, who was attacked as well, “I was assured by the Nassau County Police Departement that they would correct the initial problems with this matter and I and my attorneys waited patiently for over two months only to find out the person they recently apprehended was simply given a desk appearance ticket and charged with a misdameanor.”
Nearly three months after the attack, Sea Cliff authorities have only apprehended two people, Matthew W. Walli, 20, who is a resident of Oregon and who police failed to charge with felony assault under the hate crime statute, and another individual recently detained and given only a desk appearance ticket.
Smith-Malave, who starred in Season 2 of Bravo TV’s Top Chef, and her civil rights Attorney, Yetta G. Kurland, of Kurland Bonica & Associates, P.C., filed the complaint against the Nassau County District Attorney’s Office and Sea Cliff Police Department today, accusing officers of mishandling the case and failing to charge their attackers with the crime of assault as defined under the hate crime Section 485 of the Penal Code.
“This most recent development is really heartbreaking,” said Kurland. “The Nassau County Police Department has broken its promise to the public and to my clients to treat the vicious attack that occurred on September 1st in Sea Cliff, New York, as the violent hate crime it was. After over two months of waiting, it is unthinkable to find that this promise was not honored.”
“By failing to charge either suspect in this brutal attack with the numerous felony charges appropriate, and only giving this recent suspect a desk appearance ticket for a misdemeanor they have betrayed the community and the individuals they were entrusted to protect. They send a message that the department does not take bias crimes and hate crimes seriously and will turn the other check and ignore the seriousness of such incidents, pretending they are minor infractions.”
“In addition,” stated Kurland, “the majority of individuals who were part of the mob that attacked and injured my clients, many of whom have already been positively identified by the victims, have yet to be charged or even arrested by the police.”
Kurland stated that “this sends a chilling message that certain people are above the law and that gang assaults and hate crimes are only taken seriously in certain neighborhoods. The laws on the books were written with an even hand of justice, and the police department must enforce them with that same even hand.”
“I call upon the district attorney’s office to correct this serious misstep by the Nassau County Police and ensure that this individual and the rest of the individuals involved are treated the same way the rest of us would be under the law.”
Alice Muniz, Vice President of the Gay Officers Action League stated “It is with great regret that we stand before you today under these circumstances. It seems that hate crimes tend to be under reported because of the perceived negative light it sheds on a community. It is when a bias related crime is not handled as such that a dark cloud is cast. It is our hope as an organization and citizens of the great State of New York, that when a possible hate crime is committed in Nassau County or any other county, each crime is investigated thoroughly, prosecuted to the fullest, and justice should be swift and just. The message needs to be clear, crystal clear, bias crimes and crimes of hate will not be tolerated against any individual, no matter what race, sex, religion, disability, or sexual orientation it is based on. No one deserves to be treated like a second class citizen.
Josie Smith-Malave and persons in her company were allegedly assaulted by a group of individuals who disliked their behaviors based on their belief of their sexual orientation.
That dislike turned into a hate crime when that group acted upon their bias by hurling anti gay epithets and violence.
The Gay Officers Action League have full confidence in the Nassau County Prosecutor’s Office in conducting a through investigation”
A Brooklyn resident, Smith-Malave, her sister, and friends had traveled to the Hamptons
for Labor Day weekend for an end-of-summer getaway. But their trip turned ugly around 11 PM on Saturday, September 1. They had walked to a nearby watering hole called Partners in Sea Cliff. Shortly after ordering drinks and dancing to jukebox music, the women were suddenly asked to leave the bar.
Smith-Malave said she was told the club didn't want to "draw the heat" because some patrons looked underage and had not shown identification when entering. Others in her group were told that it had started looking “too gay.” All in Smith-Malave's group were older than 21 years of age.
As soon as an employee escorted them outside, a mob of 9 to 12 teenagers standing in the bar's entrance encircled Smith-Malave and her friends and started spewing hateful slurs, branding them "fucking dykes", "fucking bitch dykes, and "carpet munchers".
The youths started to throw sticks, cups and other objects at Smith-Malave, her sister and friend, and repeatedly spit on them. The violence then escalated when several boys in the group began to repeatedly punch the three women in the face and chest.
Smith-Malave said that the young perpetrators also stole her video camera, which Smith-Malave had purposely turned on to document the assault. Smith-Malave said the assault started in the bar's entrance and continued onto the adjacent street, and that patrons at the bar along with employees laughed, took pictures, and watched the attack.
Sea Cliff Police showed up a short time later, but refused to properly investigate or charge any individuals despite Smith-Malave's complaints, including her insistence that her video camera had been stolen. While police were at the scene, one of the perpetrators returned and began to verbally shout slurs at the women.
Kurland said that the following day, the owner of Partners contacted the police department to let them know someone had returned the camera. Kurland said the video that had been shot had been suspiciously erased.
"Underage drinking and bias-related violence should simply not be tolerated, and even more problematic is the fact that the bar, the patrons, and the officers who initially responded turned a deaf ear to the senseless attack on these women," said Kurland. "This incident constitutes not only felony assault under New York State hate crime laws, but gang assault in the second degree, a felony, which carries with it substantial penalties."
Under the New York State hate crimes laws, when a person is convicted of a hate crime such as this, and the specified offense is a Misdemeanor or a class C, D or E felony, the hate crime is bumped up one category higher than the specified offense. Moreover under Section 485 of the Penal Code, attacks causing simply physical injury not serious injury would still be considered a felony assault.