New Jersey’s bias-intimidation law continues to be given careful scrutiny by the state’s appellate courts.
A panel on Monday reversed a conviction under the statute for a cross burning, finding the crime as charged lacked an intent element and an identifiable victim.
It is at least the second vacatur this year of a conviction based on subsection (3) of the statute, N.J.S.A. 2C:16-1(a), which lacks an explicit scienter requirement.
The subsection “clearly contemplates an identifiable victim, not an abstract or hypothetical victim,” the Appellate Division held in State v. Enders.
Darren Gelber, president of the Association of Criminal Defense Lawyers of New Jersey, says the provision “is going to continue to be interpreted very narrowly by the courts” and might benefit from legislative amendment.
Daniel Enders and two friends were charged with igniting the eight-foot cross in an open field in Bass River, near Route 9 in rural Burlington County, in February 2011.
The three of them claimed that they found the cross and a gasoline can while walking in the woods and denied that the stunt was racially motivated. A motorist spotted the blaze and called police.
They were charged with arson and violations of subsection (3).
Subsections (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.
A grand jury indictment charged that Enders committed arson “under circumstances that caused any victim to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed” that the purpose was to intimidate by bias.
Enders moved to dismiss that count because it failed to identify a victim or allege a purpose to intimidate, which Burlington County Superior Court Judge Jeanne Covert denied, finding it sufficient that the cross was burned near a highway where it was likely to be seen.
Enders pleaded guilty to a third-degree count of bias intimidation. He denied any racial animus but acknowledged that someone could have interpreted the stunt as threatening.
Covert sentenced Enders to 180 days in jail and two years’ probation.
In entering his plea, Enders reserved the right to appeal Covert’s denial of the motion to dismiss. He has served out his sentence but continued to pursue the appeal.
In their per curiam decision, Appellate Division Judges Marianne Espinosa and Richard Hoffman relied on State v. Pomianek, 429 N.J. Super. 339 (App. Div. 2013).
There, an appeals panel mandated that a conviction under subsection (3), in order to pass constitutional scrutiny, requires proof of the defendant’s biased intent rather than the victim’s perception of the conduct.
That January 2013 decision resulted in vacatur of the defendant’s bias-intimidation conviction because the trial judge instructed the jury to consider the victim’s perception of the crime rather than the defendant’s intent.
Also guiding the panel was Virginia v. Black, 538 U.S. 343 (2003), where the U.S. Supreme Court held unconstitutional a Virginia law that criminalized cross burnings without requiring proof of intent to discriminate.
Enders’ lawyer, Cherry Hill solo Donald Manno, says a specific victim and intent are “the only way to rescue the constitutionality of the statute.”
He believes the charging deficiency is not likely to be repeated. “I would hope prosecutors read the cases and adhere to them,” Manno says. “I don’t think it’s a problem with the statute. I think it’s good that it’s getting a judicial interpretation.”
Gelber, a partner at Wilentz, Goldman & Spitzer in Woodbridge, says it’s unusual to have a bias-intimidation prosecution without a victim. “Inexplicably, the state couldn’t find anybody to say they’d seen this cross burning and felt victimized by it.”
Burlington County Prosecutor Robert Bernardi says through a spokesman that he and the Division of Criminal Justice will decide whether to ask the New Jersey Supreme to hear the case.