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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46517 Justice Ort DEFENDANT WAS convicted under Penal Law �485.05(1)(b) after pleading guilty to posting racist flyers in his neighborhood. Prosecutors charged that he posted the flyers after telling a real estate agent that if a nearby home was sold to blacks, he would burn it down. Defendant moved to vacate his conviction on the ground of ineffective assistance of counsel, claiming that his lawyer should have argued that prosecution under the hate crime law violated defendant’s First Amendment right to free speech. The court denied vacatur, ruling that defendant failed to establish that his First Amendment claim had merit. Distinguishing Vives v. New York and People v. Bethea, on which he relied, the court, citing the U.S. Supreme Court’s decision in Wisconsin v. Mitchell and People v. Rokicki, an Illinois appellate decision, ruled that by posting the racist flyers, defendant reinforced his oral threat to burn the house down if it was sold to blacks.

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