On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Approved for Publication August 19, 1997.
Before Judges Stern, Humphreys and Wecker. The opinion of the court was delivered by Humphreys, J.A.D. Stern, J.A.D., Concurring. Wecker, J.s.c., (temporarily assigned) Dissenting.
The opinion of the court was delivered by: Humphreys
The opinion of the court was delivered by
The defendant appeals his extended term sentence which was imposed pursuant to N.J.S.A. 2C:44-3(e) (the "Hate Crime Statute"). The defendant asserts that the statute is unconstitutional because: (1) the statute is too vague; (2) the statute violates his constitutional right to due process by using a preponderance of the evidence standard.
We have thoroughly reviewed the record and considered the arguments presented. We conclude that the statute is constitutional and affirm.
The defendant fired a rifle on two occasions in 1994 at the home of a neighbor. On the first occasion, a bullet entered the third floor bedroom of one of the neighbor's three children. On the second occasion, defendant fired several times and as a result the neighbor's front door and windows were "bullet-riddled." Fortunately, no one was injured. The defendant is white; the neighbor is an African-American. The police later searched the defendant's home and found an "arsenal of weapons," including an anti-personnel bomb.
The defendant was charged in an indictment with various crimes, including first-degree attempted murder. He pled guilty on July 24, 1995 to counts three and eighteen charging him with the second degree crime of possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) and to count twenty-two charging him with the third degree crime of unlawful possession of a prohibited weapon, the anti-personnel bomb, in violation of N.J.S.A. 2C:39-3(a). The defendant conditioned his plea upon the right to appeal his sentence. See R. 3:19-3(f).
The State moved to have the defendant sentenced to an extended term pursuant to N.J.S.A. 2C:44-3(e). That statute provides:
The court shall, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime, . . . to an extended term if it finds, by a preponderance of the evidence, the grounds in subsection e. . . .
e. The defendant in committing the crime acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity.
[Ibid. but see L. 1995, c. 211, 93, eff. Aug. 14, 1995 (amending the text of this statute).]
The extended sentence for the defendant's second degree crimes is between ten and twenty years which is the ordinary range for a first degree crime. For his third degree crime, the extended sentence would be five to ten years which is the ordinary range for a second degree crime. See N.J.S.A. 2C:43-7(a)(3), (4); N.J.S.A. 2C:43-6(a)(2), (3). In effect, hate crimes are sentenced one degree higher.
A police officer testified at the hearing on the State's motion that the defendant had told the police that he shot at the house because he knew that blacks were living there and he wanted to give them "a message that they were in his neighborhood."
The defendant, a pharmacist, testified at the hearing. He said that he shot at the front door because the "glass and the purple door" caught his eye and that at the time of the incident, he was under the influence of alcohol and drugs. He denied that he shot at the house because he wanted to keep blacks away from the area. He also denied that he was a racist or a member of any racist group. He said that he had black friends and had no bias against African-Americans. He testified that he lied to the police about his reasons for shooting, because the police officer threatened him and the defendant wanted to get the interrogation over with.
A psychologist testifying for the defendant at the hearing said that the defendant suffered from an obsessive-compulsive disorder, a cyclothymic disorder (excessive mood swings), drug dependence, alcohol abuse, the impulse disorder of kleptomania, and premature ejaculation. The psychologist concluded that a person of defendant's personality type would say or do almost anything, including lie, to get out of a police interrogation.
The Judge found that the testimony of the police officer was "credible, believable." The Judge said that the questioning of the defendant by the police "was not overbearing. It was not onerous or is not in any sense dictatorial." The Judge said he was "satisfied that the crime was motivated by racial bias" and that the defendant's explanation for the shooting was bizarre. The Judge concluded that the defendant had changed his story in order to avoid punishment for a bias crime. The Judge found that "the standard of proof required by the statute [preponderance of the evidence] has been met. The defendant is subject to enhanced penalties."
The defendant was sentenced on count eighteen to an extended term of twelve years with a parole ineligibility of four years, the mandatory minimum parole ineligibility under the Graves Act. See N.J.S.A. 2C:43-6(c). He was sentenced on count three to a concurrent term of seven years imprisonment with a three year parole bar and on count twenty-two to a concurrent term of three years imprisonment. He was ordered to pay $1,980 restitution to the victim. On each of the three counts, a $100 Violent Crimes Compensation Board penalty and a $75 Safe Street Act penalty were imposed. The remaining counts were dismissed.
The defendant contends that the statute is too vague. See State v. Afanador, 134 N.J. 162, 170, 631 A.2d 946 (1993) (a criminal statute is unconstitutionally vague "if persons of common intelligence must necessarily guess at its meaning and differ as to its application"); State v. Cameron, 100 N.J. 586, 593, 498 A.2d 1217 (1985) (a statute is facially invalid where it is "impermissibly vague in all its application, that is, there is no conduct that it proscribes with sufficient certainty").
The defendant's contention is refuted by the decision of the New Jersey Supreme Court in State v. Mortimer, 135 N.J. 517, 529, 641 A.2d 257, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994). In that case, the Court considered the constitutionality of a section of the Hate Crime Statute, N.J.S.A. 2C:33-4(d), which provided that "harassment," a petty disorderly persons offense, would be raised to a fourth degree offense if the defendant "acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity." The defendant in Mortimer, supra, challenged the statute on a number of constitutional grounds including vagueness. The Supreme Court said that if the statute were "construed narrowly and applied to a proper predicate offense, subsection d withstands a 'vagueness' challenge." 135 N.J. at 531. The Court cured the vagueness problem by excising the words "at least in part, with ill will, hatred or bias toward." Id. at 534.
The section of the Hate Crime Statute at issue in the present case, N.J.S.A. 2C:44-3(e), has the same language as that construed in Mortimer. As was done in Mortimer, we will excise the words "at least in part, with ill will, hatred or bias toward" and thereby overcome the vagueness challenge. We note that the Legislature has already made this change to the ...