A New Jersey law that ratchets up the seriousness of crimes that are committed with intent to intimidate based on bias has flunked its first appellate test.
On Wednesday, a state appeals court held the statute unconstitutional as applied to a defendant convicted based on a victim’s perception of racial bias, without actual proof of intent.
A defendant “must intend to commit the predicate offense, and must also intend to intimidate the victim because of his or her membership in a protected class and intend to cause the victim to perceive the underlying offense as being bias-motivated,” the Appellate Division wrote in State v. Pomianek, A-2694-10.
Holding otherwise would cause the statute to run afoul of First Amendment principles, the panel added.
The precedential ruling could have implications for former Rutgers University student Dharun Ravi, who was convicted last March under the statute for capturing on a webcam his college roommate Tyler Clementi’s romantic tryst with another man and then texting and making social-media postings about it. Clementi jumped off the George Washington Bridge three days later.
N.J.S.A. 2C:16-1(a)(1) and (2) increase the degree of certain underlying crimes if committed purposefully or knowingly to intimidate an individual or a group based on race or another discriminatory factor.
But subsection (3) allows for a conviction if the underlying offense was committed under circumstances that caused the victim to be intimidated or to “reasonably believe” the purpose was to intimidate.
Subsection (3) was used to convict David Pomianek Jr., an employee of the Gloucester Township Department of Public Works.
On April 4, 2007, Pomianek and several co-workers were at a department facility containing a caged equipment storage area nine feet above floor level, accessible by an open stairway.
Michael Dorazo — Pomianek’s co-worker, friend and frequent partner in workplace pranks — summoned fellow employee Steven Brodie into the cage under the guise of retrieving an item for their supervisor. Once Brodie was inside, Dorazo shut the door, padlocked it and descended the stairs laughing.
Brodie was trapped for several minutes before a key could be located. According to testimony, Pomianek and Dorazo taunted him, saying “you throw a banana in the cage and he goes right in” and making references to a monkey.
Brodie, who is black, while Pomianek and Dorazo are white, didn’t report the incident for fear of reprisal, but police learned of it months later. Pomianek and Dorazo were indicted in 2009. Among the charges against Pomianek was bias intimidation.
At trial, Brodie testified that he was humiliated by the incident and interpreted Pomianek’s remarks as racist.
Camden County Superior Court Judge Ronald Freeman instructed jurors, under subsection (3), to consider Brodie’s perception of the crime rather than Pomianek’s intent.
The jury convicted Pomianek on two counts of harassment and the bias-intimidation count. He was sentenced to 270 days in jail on weekends.
In Wednesday’s ruling, Judges Susan Reisner, Richard Hoffman and Jonathan Harris affirmed Pomianek’s harassment convictions but overturned the bias-intimidation conviction.
Reisner wrote for the panel that the bias-intimidation law was passed in response to a 2000 U.S. Supreme Court decision, Apprendi v. New Jersey, 530 U.S. 466, finding that intent to intimidate is elemental to a bias crime.
There is no explanation in the legislative history for the absence of a scienter requirement in subsection (3), but lawmakers “[c]learly … understood that the bill they were considering required proof … of defendant’s intent to commit a crime,” Reisner wrote.
The state Attorney General’s Office is reviewing the opinion and assessing its options, says spokesman Paul Loriquet.
Pomianek’s lawyer, Westmont solo F. Michael Daily Jr., did not return a call.
The first known prosecution under the bias-intimidation statute, State v. Frank Pozar, an Essex County case, ended in acquittal in 2003 and was the source of the model jury charge now used in such trials.
The prosecutor, Deborah Cummis Sandlaufer, now a Roseland solo, says subsection (3) was worrisome even then. “I never charged under that section precisely because of the concerns that the court pointed out,” she says, referring to Wednesday’s ruling.
Sandlaufer says it’s likely the Legislature ultimately will amend subsection (3)’s language.
First Assistant Middlesex County Prosecutor Julia McClure, who tried the Ravi case, notes that just one of Ravi’s four bias-intimidation convictions was based on subsection (3).
McClure says Judge Glenn Berman in that case “definitely tailored his jury charge beyond the model jury charge” and “tried to give the defendant every reasonable inference.”
Ravi’s appeals are pending. Both sides are awaiting trial transcripts and have yet to file briefs.
Ravi’s lead trial counsel, Steven Altman of Benedict and Altman in New Brunswick, did not return a call.