NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 11-08-1012.
Donald F. Manno argued the cause for appellant.
Bethany L. Deal, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Deal, of counsel and on the brief).
Before Judges Espinosa and Hoffman.
Defendant Daniel M. Enders appeals from his conviction for third-degree bias intimidation, N.J.S.A. 2C:16-1a(3). Defendant pled guilty after the court denied his motion to dismiss the bias intimidation count of the indictment. Defendant's plea agreement provided that he could appeal the Law Division's denial of his motion to dismiss. The court sentenced defendant to 180 days in the county jail and a two-year term of probation. For the reasons that follow, we reverse defendant's conviction.
The following facts are derived from the motion record. At 8:25 p.m. on February 16, 2011, Trooper Ian Fenkle of the New Jersey State Police, responded to a 9-1-1 call of a burning eight-to-ten-foot cross in an open field in Bass River Township. The 9-1-1 caller said she had seen three teenagers standing in a group on the same side of the road as the cross.
By the time Trooper Fenkle arrived, a fire fighter who lived nearby had already extinguished the fire. Trooper Fenkle discovered a one-gallon gasoline can behind the cross and determined that gasoline had been used to ignite the cross. Trooper Fenkle soon located the three individuals identified by the 9-1-1 caller and determined they were responsible for the burning cross. The threesome included defendant and two friends, co-defendants Christopher Hurrell and Nicholas Comis.
All three co-defendants initially denied any responsibility for the burning cross; however, while Trooper Fenkle spoke with Comis, he observed a liquid stain on Comis' left pant leg and detected an odor of petroleum based fuel. Comis then admitted his involvement in the cross burning, and his co-defendants eventually did as well. According to Trooper Fenkle, Comis told him that they had come upon the cross while walking through the woods, and that a gas can was nearby. The three decided to carry the cross out of the woods into a nearby field and douse it with the accelerant contained in the gas can and ignite it. Comis denied any bias or racial intent and claimed he was unaware of any African-American families living in the area.
According to Trooper Kenkle, while the location of the cross burning would not have been visible from any home in the area, it would have been visible to motorists traveling on Route 9. All three co-defendants were subsequently indicted for second-degree bias intimidation, N.J.S.A. 2C:16-1a(3) (count one) and third-degree arson, N.J.S.A. 2C:17-1b(5) (count two). Defendant moved to dismiss count one of the ...