State v. Dalal

• Decision Date: 15 April 2021
• Docket Number: A-0686-17,DOCKET NOS. A-5556-16
• Citation: 467 N.J.Super. 261,252 A.3d 204
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Aakash A. DALAL, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. Anthony M. Graziano, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

467 N.J.Super. 261

252 A.3d 204

STATE of New Jersey, Plaintiff-Respondent,

v.Aakash A. DALAL, Defendant-Appellant.

State of New Jersey, Plaintiff-Respondent,

v.Anthony M. Graziano, Defendant-Appellant.

DOCKET NOS. A-5556-16

A-0686-17

Superior Court of New Jersey, Appellate Division.

Argued January 12, 2021

Decided April 15, 2021

Alan L. Zegas, Summit, NJ, argued the cause for appellant Aakash A. Dalal (Law Offices of Alan L. Zegas, attorneys; Alan L. Zegas and Joshua M. Nahum, Summit, NJ, on the briefs).

John A. Albright, Designated Counsel, argued the cause for appellant Anthony M. Graziano (Joseph E. Krakora, Public Defender, attorney; John A. Albright, on the briefs).

William P. Miller, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; William P. Miller, of counsel and on the briefs; Nicole Paton, Assistant Prosecutor, and John J. Scaliti, Legal Assistant, on the briefs).

Before Judges Fisher, Gilson, and Moynihan.

The opinion of the court was delivered by

GILSON, J.A.D.

During a one-month period, between December 10, 2011, and January 11, 2012, five Jewish houses of worship were vandalized, fire-bombed, or attempted to be fire-bombed. Following an investigation, co-defendants Anthony Graziano and Aakash Dalal were charged with multiple crimes related to those acts.

Defendants were tried separately, and juries convicted each defendant of numerous crimes, including first-degree terrorism, N.J.S.A. 2C:38-2(a) ; first-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2) and N.J.S.A. 2C:2-6 ; first-degree conspiracy to commit arson, N.J.S.A. 2C:17-1 and N.J.S.A. 2C:5-2 ; and first-degree bias intimidation, N.J.S.A. 2C:16-1(a)(1) and N.J.S.A. 2C:2-6. Graziano was also convicted of second-degree hindering apprehension or prosecution for conduct constituting the crime of terrorism, N.J.S.A. 2C:38-4(a) and N.J.S.A. 2C:2-6. Both defendants were sentenced to aggregate terms of thirty-five years in prison, with thirty years of parole ineligibility.

Defendants separately appeal, challenging the constitutionality of the New Jersey Anti-Terrorism Act (Act), N.J.S.A. 2C:38-1 to -5. In this consolidated opinion we address a question of first impression: whether the Act is unconstitutionally vague. We hold it is not. Accordingly, we affirm defendants' convictions. We also address an Eighth Amendment challenge to the sentence imposed under the Act and conclude that it is not cruel and unusual.¹

I.

Sometime between the evening of December 10, 2011, and the following morning, the Jewish temple Beth-Israel in Maywood was vandalized. Swastikas and other white supremacist graffiti were spray-painted on the front entrance and handicap ramp of the temple. The graffiti included the phrase "Jews did 9/11."

Ten days later, on December 21, 2011, the Jewish temple Beth El in Hackensack was vandalized. Multiple swastikas were spray-painted on the doors of the synagogue. The phrase "Jews did 9/11" was spray-painted on the ground in front of the temple.

Less than two weeks later, on January 3, 2012, Molotov cocktails² were thrown at the Jewish temple K'hal Adath Jeshurun in Paramus. The fire damage was limited, but investigators located ten separate points of origin of fires on the outside of the temple.

On January 7, 2012, at 2:01 a.m., a surveillance camera outside of the Jewish Community Center in Paramus captured the image of a person wearing a hooded jacket near the front of the center. Later, police discovered Molotov cocktails and bottles containing gasoline in the wooded area behind the parking lot of the center.

In the early morning hours of January 11, 2012, the Jewish temple Beth El in Rutherford was set on fire. A rabbi and his family lived on the second and third floors of the temple. That night, the rabbi, his wife, their five children (ranging in ages from seven to fifteen), the rabbi's father, and his mother-in-law were all sleeping in the temple. The rabbi awoke to a bright orange light outside his window. Within seconds, he heard glass breaking and saw fire spreading in his bedroom. The rabbi was able to put out the fires and he and his wife woke the rest of the family and gathered them together until the police arrived. The rabbi suffered minor burns and no one else was injured.

During the investigation of the fires at the Rutherford temple, police found glass bottles of Crush brand soda and aerosol cans of hairspray. The police then canvassed various stores and learned that on January 9, 2012, a Walmart in Saddlebrook had sold a customer Crush soda, cans of hairspray, as well as motor oil and duct tape. Law enforcement personnel obtained security camera video footage from the Walmart showing the individual making those purchases. That person was wearing a black shirt with red stripes and a red hat.

On January 20, 2012, the police released still photos of the individual from the video to the media and public. In an accompanying press release, the public was asked to contact the Bergen County Prosecutor's Office (BCPO) with any information concerning the identity of the individual. Based on information garnered from the public and the Lodi police, Graziano became a suspect.

On January 23, 2012, Graziano's home was searched pursuant to a warrant. Among other items, law enforcement personnel seized two computers, burnt batting gloves, duct tape, and a book called "The Anarchist Cookbook" containing instructions on how to make a Molotov cocktail. The police also seized a long-sleeved shirt, which matched the shirt of the individual shown in the Walmart video footage. In the garbage can outside the house, the police found ripped bandanas and duct tape, consistent with the tape used to construct the Molotov cocktails found at the Rutherford temple.

Graziano agreed to accompany BCPO detectives to provide biological fluids and other samples to be collected in accordance with the search warrant. At the BCPO, Graziano was read his Miranda ³ rights, waived those rights, and gave a statement. In that statement, he confessed to some of the crimes, but did not implicate Dalal. Graziano admitted to throwing a Molotov cocktail at the K'hal Adath Jeshurun temple on January 3, 2012. He explained that he targeted the temple after doing a Google search for "NJ Synagogues." He also admitted that he assembled a Molotov cocktail at the temple by using items from his home, poured gasoline on the base of the building, then lit and threw the Molotov cocktail.

Graziano also confessed to throwing Molotov cocktails at the Beth El temple in Rutherford, and to being the customer depicted in the Walmart security footage. He admitted to targeting synagogues because of his biased beliefs regarding the Jewish faith.

When law enforcement personnel searched Graziano's home, they seized a laptop computer. Andre DiMino, a senior forensic analyst with the BCPO, analyzed the contents of the laptop's hard drive. Although someone had apparently tried to wipe clean the hard drive, DiMino was able to discover and reconstruct instant messaging conversations between "Dreeper1Up" and "QuantumWorm." DiMino's analysis showed the Dreeper1Up profile was used on Graziano's computer.

The day after Graziano was arrested, Dalal called the police tip line to report that he knew Graziano, but he thought his views were crazy. After further investigation, Dalal was arrested on March 2, 2012. On the day of his arrest, Dalal was read his Miranda rights, waived those rights, and gave a statement. When confronted with the instant messaging chats recovered from Graziano's computer, Dalal admitted that he was QuantumWorm. He went on to admit that he was present when the Maywood and Hackensack temples were vandalized, but he claimed that he had only watched Graziano do the spray painting. Dalal also told the police that he was aware that Graziano was planning to throw a Molotov cocktail at the Paramus temple and he acknowledged that he "might have" told Graziano to search online for instructions on how to make a Molotov cocktail.

Dalal also acknowledged implying to Graziano that there was a "big underworld group," and that he had "encouraged" Graziano and "egged him on a little bit" in planning the attacks. Dalal further admitted that he knew that Graziano was targeting only Jewish people, but he denied hating Jewish people himself and claimed that he was only being "sarcastic" in his comments about Jewish people in his chats with Graziano.

On March 1, 2013, a grand jury issued a thirty-count indictment against defendants, charging them with, among other things, first-degree terrorism (count twenty-nine), and hindering apprehension or prosecution for conduct constituting the crime of terrorism (count thirty). Specifically, count twenty-nine charged defendants with promoting an act of terror and terrorizing five or more people in violation of N.J.S.A. 2C:38-2 by conspiring to vandalize and set fire to synagogues. Count thirty charged defendants with hindering prosecution because of Graziano's attempts to delete incriminating written communications with Dalal from his computer.

Before trial, defendants filed a number of motions including motions to dismiss the terrorism charges, a motion to recuse the entire Bergen County judiciary, a motion to recuse the BCPO, a motion for a change of venue, a motion to sever counts, a motion to suppress the evidence seized from Graziano's house, a motion to suppress the evidence seized from Dalal's jail cell, and a motion to suppress defendants' statements. All those motions were denied, but Judge Joseph V. Isabella, who sits in Hudson County, was assigned to preside over the trials of both defendants to protect the appearance of impartiality. See State v. Dalal, 221 N.J. 601, 610, 115 A.3d 1264 (2015).

At each of the defendants' trials, the State presented evidence that Dalal and Graziano played various roles in the vandalism and arsons committed at the four synagogues and Jewish center. The State presented evidence that...