October 23, 2016

Bias statute requires proof of defendant intended bias, not victim perception and statute unconstitutional. State v. Pomianek

Bias statute requires proof of defendant intended bias, not victim perception and statute unconstitutional. State v. Pomianek 221 N.J. 66 (N.J. 2015).

Subsection (a)(3) of the bias-intimidation statute, N.J.S.A. 2C:16-1, fails to give adequate notice of conduct that it proscribes, is unconstitutionally vague, and violates the Due Process Clause of the Fourteenth Amendment.
Decided March 17, 2015
ALBIN, J., writing for a unanimous Court.
At issue in this appeal is the constitutionality of N.J.S.A. 2C:16-1(a)(3), a bias-crime statute that allows a jury to convict a defendant even when bias did not motivate the commission of the offense.
Defendant David Pomianek, Jr., co-defendant Michael Dorazo, Jr., and Steven Brodie, Jr., worked for the Parks and Recreation Division of the Gloucester Township Department of Public Works. Defendant and Dorazo, who are Caucasian, worked as truck drivers. Brodie, who is African-American, worked as a laborer.
On April 4, 2007, these men were assigned to work at an old garage used for storage by Public Works. In the garage was a sixteen-foot long and eight-foot wide steel storage cage. The cage was enclosed by a heavy chain-link fence on three sides and a cinder block wall on the fourth side and was secured by a sliding chain-link door with a padlock. A number of employees were horsing around in the building and “wrestling” in the cage. In a ruse, Dorazo approached Brodie and told him that their supervisor needed an item from the cage. Once inside the cage, Dorazo shut the cage door, locking Brodie inside.
A number of Public Works employees began laughing, but Brodie found no humor in his predicament. Brodie recalled defendant saying, “Oh, you see, you throw a banana in the cage and he goes right in,” which triggered more laughter among the men. Brodie considered the remark to be “racial” in nature. From his perspective, the line about “throwing the banana in there” was like “being called a monkey in a cage.” Brodie admitted, however, that he never heard defendant call him a monkey. The cage door was unlocked after three to five minutes. Brodie felt humiliated and embarrassed. After his release, Dorazo was heard saying, “You all right, buddy? We were just joking around.” Brodie replied, “Yeah, yeah, I’m fine.”
Defendant and Dorazo were charged in a sixteen-count indictment with two counts of second-degree official misconduct, twelve counts of fourth-degree bias intimidation, and two counts of third-degree hindering apprehension or prosecution. The hindering charges were dismissed. The court denied defendant’s pretrial motion to dismiss the bias-intimidation counts based on a constitutional challenge to the bias-intimidation statute. At the conclusion of the trial, the jury acquitted defendant of all counts alleging that he falsely imprisoned or harassed Brodie either with the purpose to intimidate him or knowing that his conduct would cause Brodie to be intimidated because of his race, color, national origin, or ethnicity, N.J.S.A. 2C:16-1(a)(1), (a)(2).
In addition, defendant was acquitted of the lesser-included offense of false imprisonment, N.J.S.A. 2C:13-3. Defendant, however, was found guilty of two fourth-degree bias-intimidation crimes, one for harassment by alarming conduct and the other for harassment by communication. N.J.S.A. 2C:16-1(a)(3). The jury reached its verdict based on two discrete findings: (1) the offenses were committed “under circumstances that caused Steven Brodie to be intimidated” and (2) considering the manner in which those offenses were committed, Brodie “reasonably believed” either that the offenses were “committed with a purpose to intimidate him” or that “he was selected to be the target because of his race, color, national origin, or ethnicity.” N.J.S.A. 2C:16-1(a)(3). The jury also convicted defendant of official misconduct, N.J.S.A. 2C:30-2(a), based in part on the finding that he committed the crime of bias intimidation. Last, the jury convicted defendant of the petty disorderly persons’ offenses of harassment by alarming conduct and harassment by communication, N.J.S.A. 2C:33-4(a), (c).
The Appellate Division reversed the bias-intimidation conviction, concluding that a conviction “based on the victim’s perception” and not on the “defendant’s biased intent” would violate the First Amendment of the United States Constitution. State v. Pomianek, 429 N.J. Super. 339, 343, 358-59 (App. Div. 2013). To save N.J.S.A. 2C:16-1(a)(3), the Appellate Division construed the statute in a way that conformed to the Constitution by imposing a state-of-mind requirement. Because the predicate for the conviction of misconduct in office was the bias crime,
the panel also reversed the misconduct conviction. The Appellate Division remanded for retrial on the charges of bias intimidation and official misconduct.
The Supreme Court granted the State’s petition for certification, 216 N.J. 363 (2013), challenging the reversal of the bias-intimidation and misconduct-in-office convictions. The Court also granted defendant’s cross-petition for certification.

HELD: Subsection (a)(3) of the bias-intimidation statute, N.J.S.A. 2C:16-1, fails to give adequate notice of conduct that it proscribes, is unconstitutionally vague, and violates the Due Process Clause of the Fourteenth Amendment.
1. Under subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1, a defendant commits bias intimidation when he acts “with a purpose to intimidate” or with “knowledge” that his conduct will intimidate a person based on an immutable characteristic, such as a person’s race or color. Unlike subsections (a)(1) and (a)(2), subsection (a)(3) focuses not on the state of mind of the accused, but rather on the victim’s perception of the accused’s motivation for committing the offense. Thus, if the victim reasonably believed that the defendant committed the offense of harassment with the purpose to intimidate or target him based on his race or color, the defendant is guilty of bias intimidation. Under subsection (a)(3), a defendant may be found guilty of bias intimidation even if he had no purpose to intimidate or knowledge that his conduct would intimidate a person because of his race or color. The defendant is culpable for his words or conduct that led to the victim’s reasonable perception even if that perception is mistaken.

2. Subsection (a)(3) of N.J.S.A. 2C:16-1 is unique among bias-crime statutes in this nation. It is the only statute that authorizes a bias-crime conviction based on the victim’s perception that the defendant committed the offense with the purpose to intimidate, regardless of whether the defendant actually had the purpose to intimidate. For a defendant to be found guilty of bias intimidation in other jurisdictions, a finding of the defendant’s bias-motivated state of mind, such as malice and specific intent, is required.  

3. The Due Process Clause of the Fourteenth Amendment of the United States Constitution guarantees that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV, § 1. A fundamental element of due process is that a law “must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., ___ U.S. ___, ___ (2012). A statute that criminalizes conduct “in terms so vague that [persons] of common intelligence must necessarily guess at its meaning . . . violates the first essential of due process of law.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Nothing in the history of the bias-intimidation statute suggests that the Legislature intended to criminalize conduct through the imposition of an amorphous code of civility or criminalize speech that was not intended to intimidate on the basis of bias. No other bias-intimidation statute in the nation imposes criminal liability based on the victim’s reasonable perceptions. N.J.S.A. 2C:16-1(a)(3) fails to set a standard that places a reasonably intelligent person on notice when he is crossing a proscribed line. The statute criminalizes defendant’s failure to apprehend the reaction that his words would have on another.  
4. The Court disagrees with the Appellate Division’s approach, which reads into subsection (a)(3) a mens rea element that is absent from the statute. The Legislature pointedly decided not to include such an element in subsection (a)(3), which is evident by the presence of mens rea elements in subsections (a)(1) and (a)(2). The Appellate Division has reconfigured subsection (a)(3) to read as a mirror image of subsection (a)(1). Rewriting the statute in that manner is not merely beyond the Court’s authority but is redundant and therefore serves no purpose. The Court has no option but to strike the constitutionally defective subsection (a)(3) of N.J.S.A. 2C:16-1. With the striking of subsection (a)(3), New Jersey’s bias-intimidation law now conforms to its original form, its legislative history, the laws of the rest of the nation, and the United States Constitution.  
The judgment of the Appellate Division is REVERSED, the bias-intimidation and misconduct-in-office convictions are dismissed, and the matter is REMANDED to the trial court for entry of judgment consistent with the Court’s opinion. 


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