In a decision reached on Wednesday, January 30th, the New Jersey Appellate Division found that in order to convict a defendant for a bias crime under N.J.S.A. 2C:16-1a(3), there must be proof of his/her biased intent. To convict merely upon the victim’s perception of the defendant’s conduct is now unconstitutional.
The matter of State v. David Pomianek, Jr. was brought before the Appellate Division by the defendant, who appealed his conviction for 2 counts of harassment, 1 count of bias intimidation, and 1 count of official misconduct. After hearing testimony that the victim, an African-American male co-worker at the Gloucester Township Department of Public Works, was locked in an equipment cage and taunted, the jury convicted the defendant of 2 counts of harassment. Based on those convictions, they then also convicted him of 1 count of bias intimidation and 1 count of official misconduct.
The error came by way of the trial judge’s instructions to the jury – that it should consider the victim’s perception of the crime rather than the defendant’s intent in committing it, in determining whether the defendant was guilty of bias intimidation (and therefore, also guilty of official misconduct). The Appellate Division found that to avoid rendering the bias intimidation statute unconstitutional, and to effectuate the Legislature’s purpose in enacting it, subsection (3) of the statute requires proof of the defendant’s biased intent. To read the full opinion, click here.
The bias intimidation statute has been the subject of debate in recent years, following the conviction of Dharun Ravi in the highly-publicized Rutgers webcam spying case. On the one hand, it has been commended for addressing what some said was a crime that far too often went unpunished. On the other hand, it has been criticized as being too harsh.
A conviction for bias intimidation has a wide range of sentencing exposure, depending on the degree of the bias crime. Under the statute, bias intimidation is classified one degree higher than the most serious underlying crime. Meaning, that if you are convicted of harassment as the underlying crime (a disorderly persons or petty disorderly persons offense), the bias crime will be a fourth degree. In Ravi’s case, because he was convicted of invasion of privacy as the underlying crime (a crime of the third degree), his bias crime was a second degree. Under certain circumstances, bias intimidation can be a crime of the first degree.
Crimes classified as first through fourth degrees in New Jersey carry exposure of various periods of incarceration in New Jersey State Prison. However, in the case of third and fourth degree crimes, if you have no prior criminal record, there is a presumption that you will not go to jail. That presumption does not exist for crimes of the first and second degree.
It will be interesting to see how this ruling from our Appellate Division affects prosecutions under the bias intimidation statute going forward.