Pomianek Bias statute requires proof of defendant intended bias

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

 State v. David T. Pomianek, Jr. (A-32/33-13) (072293)



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.