On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-02-0646.
The opinion of the court was delivered by: Reisner, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2012
Before Judges Reisner, Harris and Hoffman.
The opinion of the court was delivered by REISNER, P.J.A.D.
In connection with an incident in which an African-American co-worker was locked in an equipment cage and taunted, defendant David Pomianek, a public employee, was convicted by a jury of harassment by communication, N.J.S.A. 2C:33-4a, and harassment by alarming conduct, N.J.S.A. 2C:33-4c. Based on those two predicate offenses, the jury convicted defendant of bias intimidation pursuant to N.J.S.A. 2C:16-1a(3). The jury also convicted defendant of official misconduct, N.J.S.A. 2C:30-2a.
We conclude that N.J.S.A. 2C:16-1a(3) would be unconstitutional if it permitted a defendant to be convicted of a bias offense based on the victim's perception of the defendant's conduct, without requiring the State to prove defendant's biased intent in committing the underlying crime.*fn1
To avoid an interpretation that would render the provision unconstitutional, and to effectuate the Legislature's purpose in enacting the statute, as reflected in the legislative history, we conclude that subsection (3) requires proof of defendant's biased intent.
Because the trial court charged the jury that for purposes of subsection (3), it should consider the victim's perception of the crime rather than defendant's intent in committing it, defendant's conviction for bias intimidation based on N.J.S.A. 2C:16-1a(3) must be reversed. We also reverse the conviction for official misconduct, because it was based solely on the underlying, invalid conviction for bias intimidation. We affirm the harassment convictions and remand for re-trial on the charges of bias intimidation, N.J.S.A. 2C:16-1a(3), and official misconduct, N.J.S.A. 2C:30-2a.*fn2
In challenging his conviction, defendant raises the following issues:
A. Standard of Review Governing Claims of Violations of Constitutional Rights.
The State Deprived the Defendant of His Right to a Speedy Trial as Guaranteed by the Sixth Amendment and the Judgment Below Should Be Reversed.
The Prosecution of the Defendant Offended Fundamental Fairness.
The New Jersey Bias Crimes Statute, N.J.S.A. 2C:16-1 Violates the First and Fourteenth Amendments.
B. Scope of Review of Denial of Motions for Acquittal and/or for a New Trial.
There Was Insufficient Evidence to Sustain a Conviction of Harassment under N.J.S.A. 2C:33-4(a) and the Defendant Should Have Been Granted an Acquittal as to That Charge or in the Alternative Afforded a New Trial.
There Was No Evidence Presented to Establish That the Defendant Engaged in a "Course of Alarming Conduct" Which Would Sustain a Conviction under Subsection C of the Harassment Statute. Point VI
The Convictions of Bias Intimidation Should Have Been Dismissed by the Trial Court.
There Was Insufficient Evidence to Support the Conviction of Misconduct in Office.
C. Scope of Review of Trial Errors. Point VIII
The Court's Refusal to Permit the Introduction of Evidence Regarding Motive on the Part of The Employer of All of the State's Witnesses Prevented the Defendant From Being Afforded a Fair Trial and Conducting an Adequate Defense.
The Prejudice of the 404(b) Evidence Admitted by the Court Outweighed Its Probative Value and It Should Not Have Been Admitted.
In This Case Where the Jury Had to Make So Many Findings on So Many Different and Varying Crimes It Was Error Not To Instruct Them That They Had to Be Unanimous on Each Element of Each Crime.
To put the legal issues in context, we summarize the pertinent trial evidence. The Gloucester Township Department of Public Works has three divisions: the Parks and Recreation Department (Parks Department), the Roads and Streets Department (Roads Department), and the Maintenance Department. In April 2007, the supervisor of work crews at the Parks Department was Len Moffa; the director of the Parks Department was Gabe Busa; and the head of the Roads Department was Robert Tulino.
In October 1997, defendant was appointed to the permanent position of custodian, and by March 2002, he had been promoted to the position of truck driver in the Parks Department. Michael Dorazo was also a truck driver in the Parks Department. Defendant and Dorazo, both Caucasian, were "really good friends."
During the "leaf season," which can extend from October 1 to the first week of January, the work crews from the Parks Department and the Roads Department combined to pick up leaves. At that time, the employees worked in teams of three, consisting of one truck driver and two laborers.
In November or December of 2006, defendant, Dorazo, and several laborers were working as a group performing leaf collection. The laborers included Steven Brodie (Brodie or the victim), his brother Robert Brodie ...