State v. Mortimer

• Citation: 641 A.2d 257,135 N.J. 517
• Parties: , 63 USLW 2015 STATE of New Jersey, Plaintiff-Appellant, v. David MORTIMER, Defendant-Respondent.
• Decision Date: 26 May 1994
• Court: United States State Supreme Court (New Jersey)

Page 517

135 N.J. 517

641 A.2d 257, 63 USLW 2015

STATE of New Jersey, Plaintiff-Appellant, v. David MORTIMER, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 12, 1993.

Decided May 26, 1994.

Simon Louis Rosenbach, Asst. Prosecutor, argued the cause for appellant (Robert W. Gluck, Middlesex County Prosecutor, attorney).

Matthew Astore, Deputy Public Defender II, argued the cause for respondent (Zulima V. Farber, Public Defender, attorney).

Ronald K. Chen, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Stephen M. Latimer, Burlington, attorney; Mr. Latimer, Mr. Chen, Annamay T. Sheppard, Charles H. Jones, and Marsha Wenk, Newark, of counsel and on the brief).

Debra L. Stone, Deputy Atty. Gen., argued the cause for amicus curiae Atty. Gen. of New Jersey (Fred DeVesa, Acting Attorney General, attorney).

Marc S. Klein, Newark, submitted a brief on behalf of amicus curiae American Jewish Congress (Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, attorneys; Mr. Klein and Marc D. Stern, of counsel; Mr. Klein and Rhonda Sobral, on the brief).

Philip Rosenbach, Livingston and Walter A. Effross, Newark, submitted a brief on behalf of amicus curiae Anti-Defamation League (Rosenbach and Rosenbach, Livingston, and McCarter and English, Newark, attorneys).

Stephen M. Orlofsky, Cherry Hill, submitted a brief on behalf of amici curiae National Asian Pacific American Legal Consortium, American Citizens for Justice, the Asian Law Alliance, Chinese for Affirmative Action, the Chinese American Citizens Alliance, the Committee Against Anti-Asian Violence, the Japanese American Citizens League, the National Asian Pacific American Bar Association, and the Organization of Chinese Americans (Blank, Rome, Comisky & McCauley, attorneys; Mr. Orlofsky and Elahna Strom Weinflash, of counsel).

The opinion of the Court was delivered by

CLIFFORD, J.

Defendant pleaded guilty to fourth-degree harassment, a violation of N.J.S.A. 2C:33-4 (section 4). He had been charged with having painted on the house of a family of Pakistani descent the words "Dots U Smell"--a scurrilous, offensive allusion that incorporates a reference to the tika, a mark on the forehead of some Hindus, especially women, indicating caste or status, or worn by both sexes as an ornament. See New Shorter Oxford English Dictionary 3309 (1993). Before sentencing, however, defendant moved to dismiss the indictment on the basis of the United States Supreme Court's decision in R.A.V. v. City of St. Paul, 505 U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), in which the Court declared unconstitutional a St. Paul, Minnesota hate-crime ordinance. Defendant argued that R.A.V. renders section 4 unconstitutional because that statute violates his First and Fourteenth Amendment rights. The trial court agreed with defendant's reading of R.A.V. and therefore dismissed the charge.

On the State's appeal to the Appellate Division we certified the cause directly. Because we conclude that section 4 withstands constitutional attack we now reverse and remand.

I

On August 23, 1991, defendant, David Mortimer, and two juveniles drove to a house owned by a family of Pakistani descent in East Brunswick. Defendant spray-painted the words "Dots U Smell" on the garage door of the house and also damaged two storm windows. The cost to repair the damage was $337.42.

A grand jury indicted defendant on two counts of harassment in violation of N.J.S.A. 2C:33-4d (subsection d). Section 4, the harassment statute, provides:

Except as provided in subsection d., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

d. A person commits a crime of the fourth degree if in committing an offense under this section, he 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.

Count One of the indictment involved an incident in which defendant allegedly painted a swastika on a car parked in front of the home of a Jewish family, and Count Two was for the incident involving the family of Pakistani descent. Although the indictment did not specify whether the predicate offenses underlying Counts One and Two were violations of subsections a, b, or c, the language of the indictment tracks subsection a.

Pursuant to a negotiated agreement, defendant pleaded guilty to Count Two and agreed to pay restitution to the owners of the East Brunswick house. In return, the State agreed to recommend that the trial court dismiss Count One and limit any sentence to a term of probation not to exceed five years.

Prior to Mortimer's sentencing, the United States Supreme Court handed down its decision in R.A.V., supra, 505 U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305, invalidating a St. Paul hate-crime ordinance. Based on that decision, defendant moved to withdraw his plea and to dismiss the indictment. Defendant argued that because subsection d enhances defendant's penalty for criminal conduct based on his viewpoint toward race, color, religion, sexual orientation, or ethnicity, section 4 violates his First and Fourteenth Amendment rights under the United States Constitution by punishing his thoughts or his motive. The trial court, concluding that the statute does violate defendant's First Amendment rights, dismissed the indictment.

The State appealed to the Appellate Division, and thereafter sought direct certification from this Court. We granted direct certification, 133 N.J. 412, 627 A.2d 1124 (1993), to address the important First Amendment challenge to the harassment statute and a challenge under the New Jersey Constitution, as well as the related issues of overbreadth, vagueness, and equal protection.

II

-A-

Defendant alleges that subsection d violates his fundamental right to freedom of speech under the First Amendment. He argues that inasmuch as R.A.V., supra, 505 U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305, dictates that a statute may not criminalize the mere expression of hate, subsection d is invalid. In R.A.V., the Court invalidated the following St. Paul ordinance:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

[St. Paul, Minn. Legis.Code § 292.02 (1990).]

Not only does R.A.V. not require us to invalidate subsection d, the opinion in that case does not even influence significantly our decision regarding that statute. Subsection d is readily distinguishable from the St. Paul ordinance: the latter criminalizes the expression of hate itself, whereas subsection d is a victim-selection or penalty-enhancement provision. The difference between the two types of criminal restrictions is clear:

The first type of hate crime law increases the penalty for a crime motivated by hatred. These 'penalty enhancement' laws increase the penalty associated with the underlying criminal act, such as assault, trespass, or battery, where a biased motivation is found. The second type of hate crime statute treats hate crime as a separate substantive crime.

[Michael S. Degnan, Comment, "Adding the First Amendment to the Fire": Cross Burning and Hate Crime Laws, 26 Creighton L.Rev. 1109, 1116 (1993).]

Subsections a, b, and c of section 4 are free-standing, because each defines an offense in its own right. Those subsections provide that a person commits a petty disorderly offense if he or she (a) communicates in a "manner likely to cause annoyance or alarm"; (b) strikes, kicks, or shoves another, or threatens to do so or (c) engages in a course of alarming conduct. Subsection d merely increases those crimes from petty disorderly offenses to fourth-degree offenses when a person acts "at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate * * * because of race, color, religion, sexual orientation or ethnicity." Before a subsection d charge will lie, therefore, the actor must first engage in conduct prohibited by subsections a, b, or c. Accordingly, subsection d does not create a separate substantive crime; rather, it acts to enhance the penalty for crimes committed with a bias motivation.

In reaching the foregoing conclusion, we decline to read subsections a and d together to create a single substantive offense akin to that struck down by the Supreme Court in R.A.V. We cannot apply subsection d until a defendant has engaged in the conduct that subsection a proscribes. Accordingly, subsection d applied on top of subsection a does not punish the mere expression of hate, as did the St. Paul ordinance in R.A.V. The effect of subsection d is only to enhance the penalty for the conduct prohibited by subsection a; punishing conduct more severely because of a bias motivation does not create a new, separate offense.

The Supreme Court upheld a penalty-enhancement statute against constitutional attack in Wisconsin v. Mitchell, 508 U.S. ----, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), concluding that the statute regulated conduct, not protected...