Forty-Five Day Sentence for Assaults on Three Gay Men

A 20-year-old man who participated in three 2009 assaults on Manhattan’s Upper East Side, including one attack on a gay man originally charged as a hate crime, was sentenced to 45 days in jail and three years on probation.

“It makes me sick to my stomach,” said Joseph Holladay, who was assaulted on East 85th Street by Driton Nicaj on June 27 last year. “It’s not justice. I didn’t expect him to go away for years… I certainly didn’t expect it to end up being 45 days.”

In a deal with the Manhattan district attorney, Nicaj pleaded guilty to the assaults and began his sentence on May 20. He was released on June 9, after accounting for time served and good behavior. Nicaj did not respond to a message left at his home seeking comment.

Gay City News emailed the Manhattan district attorney’s press office on May 23 seeking an explanation. A brief response came on June 9. The office promised details the next day, but did not provide them. Gay City News confirmed the sentence by reviewing records held at the Manhattan criminal courts. The press office did not respond to a request for comment.

Holladay was knocked unconscious during the assault. He believed he was hit with a silver gun, though no weapon was found. The wound on his head required stitches.

The day after assaulting Holladay, Nicaj assaulted two other men. One man had a broken nose and three skull fractures, requiring six hours of surgery to insert a metal plate in his head. The second man required stitches to close a wound on his lip.

Gay City News could not locate the two other men. Press reports at the time said the two men were gay.

When Holladay contacted police after being released from the hospital, he was told that the case was closed. After his story was reported in the Village Voice, police reopened the investigation, Holladay said. Nicaj was arrested on July 9.

At his arraignment, Nicaj faced multiple felony charges, including first-degree robbery, which has a maximum sentence of up to 25 years in prison. The district attorney got an indictment on six third-degree assault counts, with two charged as hate crimes in the Holladay assault. Third-degree assault, a misdemeanor, has a maximum penalty of one year in jail.

Nicaj gave three statements to police, two oral and one written. He gave a videotaped statement to Lisa Zito, the assistant district attorney who prosecuted the case.

“The defendant has made admissions to being present on the June 27, 2009 assault and committing the assaults on June 28, 2009 within approximately a half hour of each other,” Zito wrote in a court filing.

The judge in the case, Ronald A. Zweibel, dismissed the hate crime elements in December, saying that Nicaj’s use of the word “faggot,” which was supported by grand jury testimony from Holladay and a woman who lives in the apartment building he was staying in, was “just typical trash-talking.”

Another grand jury witness, who had been smoking marijuana and “hanging out” with Nicaj in a car for the eight hours preceding the assault, said the fight began after Holladay gave Nicaj the finger. Zweibel believed that witness.

“Since there was no evidence to contradict her testimony, the most natural inference that can be drawn from defendant’s alleged statement is that he was motivated by anger,” Zweibel wrote.

Racial, anti-gay, and other slurs are the usual way that prosecutors establish that defendants are motivated by bias.

“The most common evidence of motive is language,” said Jack McDevitt, associate dean at the College of Criminal Justice at Northeastern University, in a 2009 interview for a story on hate crimes.

Sharon Stapel, executive director of the New York City Anti-Violence Project (AVP), which serves the queer community, agreed.

“Faggot is a word that is used in a very specific context and with a very specific meaning,” she said. “To us, it’s clear that this is a hate crime.”

Holladay said he met with the district attorney’s office “roughly four or five times,” and that at a November 17 meeting, when Robert Morgenthau was still the district attorney, it was apparent they were going to offer Nicaj the sentence. Nicaj pleaded guilty and was sentenced four months after Cyrus Vance assumed the office.

“They told me that they were going to make that deal,” Holladay said. “That was the whole point of the meeting… I vehemently disagreed with them.”

Holladay, who works in the publishing industry in Boston, said he stopped fighting at that point.

“At a certain point, I just gave up,” he said. “I could have gotten more loud, but a part of me was just exhausted by the prospect… I just couldn’t deal with any more drama.”

Holladay was also harshly critical of AVP, which highlighted his case by including him in a July 1 press conference where it released its annual hate crime statistics.

“They were no help whatsoever,” he said. “These people, the AVP, are supposed to be checking in with the police, checking in with the DA, looking out for my interests…They were just useless.”

Citing AVP’s policy of not discussing clients, Stapel declined to respond.