Gay Man’s Attacker Faces More Time

BY DUNCAN OSBORNE | A man sentenced to just 45 days in jail and three years on probation for his participation in three 2009 assaults on Manhattan’s Upper East Side, including an attack on a gay man visiting from Boston that was originally charged as a hate crime, has violated his probation and could get more jail time.

At his 2009 arraignment, Driton Nicaj, now 21, faced multiple felony charges, including first-degree robbery, which has a maximum sentence of up to 25 years in prison. The Manhattan district attorney’s office, then headed by Robert Morgenthau, indicted Nicaj on six third-degree assault counts, with two charged as hate crimes in an attack on Joseph Holladay. Third-degree assault, a misdemeanor, has a maximum penalty of one year in jail.

Two years after three assaults earned 45-day sentence, probation violation is a snare

The judge in the case, Ronald A. Zweibel, dismissed the hate crime elements in December of 2009, 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.”

In a deal with the district attorney, Nicaj pleaded guilty to the assaults and began his sentence on May 20 of last year. He was released on June 9, after getting credit for time served and good behavior.

On November 16, he was arrested and charged with third-degree criminal trespass and marijuana possession. The city’s Department of Probation has cited Nicaj for violating his probation, and he is scheduled to appear before Zweibel on March 10. The judge could revisit the original sentence and give Nicaj more jail time. Nicaj missed a February 17 court date on the trespass and marijuana charges, and a warrant was issued for his arrest.

Holladay and the district attorney’s office did not respond to requests for comment. Sharon Stapel, executive director of the New York City Anti-Violence Project (AVP), declined to comment.

Holladay was knocked unconscious during the June 27, 2009 assault and had a wound on his head that required stitches. The day after attacking 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. Press reports at the time said the other two men were gay as well.

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.

“It makes me sick to my stomach,” Holladay said in 2010, referring to the original sentence. “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.”

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