State v. Pomianek, 429 N.J. Super. 339

Defendant Pomianek, a public employee, was convicted of harassment by communication and harassment by alarming conduct for a cage incident where an African-American coworker was locked in a cage and taunted.
Jury convicted him of bias intimidation under N.J.S.A. 2C:16-1(a)(3) based on a theory that the harassment was motivated by race and that the victim perceived bias in the underlying crime.
Conviction for official misconduct was based on the bias intimidation underlying the cage incident; the cage incident involved Dorazo locking Brodie in a cage and defendant's remarks.
Court found N.J.S.A. 2C:16-1(a)(3) unconstitutional if it permitted conviction based solely on the victim’s perception without proof of biased intent by the defendant; thus requires proof of biased intent.
Trial court allegedly charged the jury to consider victim’s perception rather than defendant’s intent, leading to reversal of bias intimidation conviction and remand for retrial; misconduct in office also reversed and remanded.
On review, harassment convictions were affirmed; bias intimidation and misconduct in office convictions were reversed and remanded for retrial on those counts only.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does 2C:16-1(a)(3) require proof of biased intent?	Pomianek and amicus argue statute penalizes speech; lacks required mens rea.	State contends statute can be satisfied by victim’s perception without defendant’s intent.	Requires proof of biased intent for each element.
Did the trial court misstate the mens rea by focusing on victim perception?	Bias can be shown by the victim’s reasonable belief; lawful per statute’s purpose.	Jury should consider victim’s perception as basis for bias intimidation.	Court reversed bias intimidation conviction due to misinstruction on intent.
Were the bias intimidation and misconduct in office convictions properly supported by the evidence?	Evidence showed harassment by both communication and alarming conduct with possible bias.	If bias-intimidation element not proven, misconduct in office not established.	Bias intimidation and misconduct in office reversed and remanded for retrial.
Is the misconduct in office conviction sustainable if based solely on bias intimidation?	Conviction relies on underlying bias crime.	Misconduct requires act related to official duties; here not shown.	Remains not supported; retrial limited to theory tying misconduct to alarm-based bias under Dorazo’s accomplice role.

R.A.V. v. St. Paul, 505 U.S. 377 (U.S. 1992) (struck down content-based bias speech regulation; cannot criminalize speech based on viewpoint)
State v. Vawter, 136 N.J. 56 (N.J. 1994) (bias crime statutes violate First Amendment when criminalizing protected speech based on listener reaction)
Virginia v. Black, 538 U.S. 343 (U.S. 2003) (cross burning doctrine; intimidation with expression requires more than mere presence of intent to intimidate)
State v. Stalder, 630 So.2d 1072 (Fla. 1994) (bias-related offenses require proportional nexus between bias and the underlying crime)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact increasing penalty beyond maximum must be submitted to jury)
State v. Gandhi, 201 N.J. 161 (N.J. 2010) (statutory interpretation of bias-related provisions distinct from stalking provisions)
State v. Shelley, 205 N.J. 320 (N.J. 2011) (interpretation presumptions; lenity used to resolve ambiguities in criminal statutes)