State v. Pomianek

221 N.J. 66 (2015)

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Nature of the Case

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Facts

On April 4, 2007, Ds worked in the Parks and Recreations Division. Ds are Caucasian and worked as truck drivers. Brodie is African-American, and worked as a laborer. The hierarchy in the Parks Division is supervisor, truck driver, and laborer. Brodie testified that a number of the employees were horsing around in the building -- throwing footballs and acting 'out of control.' There was a sixteen-foot long and eight-foot-wide steel storage cage on a landing, thirteen steps above ground level. 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. D was wrestling with a coworker in the storage cage. The coworker attempted to close the cage door on D but D escaped. Dorazo (D) approached Brodie and told him that their supervisor needed an item from the cage. Brodie stepped into the cage and Dorazo (D) shut the cage door, locking Brodie inside. Employees began laughing, but Brodie was not amused. Brodie recalled D saying, 'Oh, you see, you throw a banana in the cage and he goes right in,' which triggered more laughter among the men, including Ds. Brodie considered the remark to be 'racial' in nature. To Brodie, this was not a harmless caper; instead, he 'was locked in a cage-like an animal.' 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 D call him a monkey. Three to five minutes later an employee unlocked the sliding door. Brodie felt humiliated and embarrassed. Dorazo, (D) said, 'You all right, buddy? We were just joking around.' Brodie replied, 'Yeah, yeah, I'm fine.' D and co-defendant, Dorazo, Jr., were charged in a sixteen-count indictment with two counts of second-degree official misconduct, twelve counts of fourth-degree bias intimidation, N.J.S.A. 2C:16-1(a)(1), (a)(2), (a)(3)(a), and (a)(3)(b); and two counts of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(3). Brodie testified to another incident involving Ds that he believed had racial overtones. Rashaan McDaniel was vacuuming leaves on the street with a hose attached to a truck that Dorazo (D) was driving. Brodie observed Dorazo (D) give two bungee cords to D, who from behind began lightly 'tapping' McDaniel on the shoulders with the cords. Brodie did not consider Ds hijinks a joking matter. In Brodie's view, D was making a statement about 'slavery because [there was] a black man working and he's getting whipped as he's working.' No criminal charges arose from that incident. The jury acquitted D of all counts alleging that he falsely imprisoned or harassed Brodie. D was acquitted of the lesser-included offense of false imprisonment. D was found guilty of two fourth-degree bias-intimidation crimes, one for harassment by alarming conduct and the other for harassment by communication. The jury found that 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.' The jury also convicted D of official misconduct. D was sentenced to a four-year probationary term, conditioned on D serving 270 days on weekends in the county jail. D appealed. The Appellate Division reversed. The court determined 'that N.J.S.A. 2C:16-1(a)(3) would be unconstitutional if [the statute] 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.' The Division then rewrote the statute and everyone appealed.