State v. Pomianek

• Decision Date: 30 January 2013
• Citation: 58 A.3d 1205,429 N.J.Super. 339
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. David T. POMIANEK, Jr., Defendant–Appellant.
• Court: New Jersey Superior Court

429 N.J.Super. 339

58 A.3d 1205

STATE of New Jersey, Plaintiff–Respondent,

v.David T. POMIANEK, Jr., Defendant–Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Oct. 23, 2012.

Decided Jan. 30, 2013.

Limited on Constitutional Grounds

N.J.S.A. 2C:16–1(a)(3)

F. Michael Daily, Jr., Westmont, attorney for appellant.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

Seth Grossman & Robert Loefflad, Somers Point, attorneys for amicus curiae The Rutherford Institute (Seth Grossman, on the brief).

Before Judges REISNER, HARRIS and HOFFMAN.

The opinion of the court was delivered by

REISNER, P.J.A.D.

In connection with an incident in which an African–American co-worker was locked in an equipment cage and taunted, defendant David Pomianek, a public employee, was convicted by a jury of harassment by communication, N.J.S.A. 2C:33–4a, and harassment by alarming conduct, N.J.S.A. 2C:33–4c. Based on those two predicate offenses, the jury convicted defendant of bias intimidation pursuant to N.J.S.A. 2C:16–1a(3). The jury also convicted defendant of official misconduct, N.J.S.A. 2C:30–2a.

We conclude that N.J.S.A. 2C:16–1a(3) would be unconstitutional if it 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.¹ To avoid an interpretation that would render the provision unconstitutional, and to effectuate the Legislature's purpose in enacting the statute, as reflected in the legislative history, we conclude that subsection (3) requires proof of defendant's biased intent.

Because the trial court charged the jury that for purposes of subsection (3), it should consider the victim's perception of the crime rather than defendant's intent in committing it, defendant's conviction for bias intimidation based on N.J.S.A. 2C:16–1a(3) must be reversed. We also reverse the conviction for official misconduct, because it was based solely on the underlying, invalid conviction for bias intimidation. We affirm the harassment convictions and remand for re-trial on the charges of bias intimidation, N.J.S.A. 2C:16–1a(3), and official misconduct, N.J.S.A. 2C:30–2a.²

I

A.

In challenging his conviction, defendant raises the following issues:

A. Standard of Review Governing Claims of Violations of Constitutional Rights.

Point I

The State Deprived the Defendant of His Right to a Speedy Trial as Guaranteed by the Sixth Amendment and the Judgment Below Should Be Reversed.

Point II

The Prosecution of the Defendant Offended Fundamental Fairness.

Point III

The New Jersey Bias Crimes Statute, N.J.S.A. 2C:16–1 Violates the First and Fourteenth Amendments.

B. Scope of Review of Denial of Motions for Acquittal and/or for a New Trial.

Point IV

There Was Insufficient Evidence to Sustain a Conviction of Harassment under N.J.S.A. 2C:33–4(a) and the Defendant Should Have Been Granted an Acquittal as to That Charge or in the Alternative Afforded a New Trial.

Point V

There Was No Evidence Presented to Establish That the Defendant Engaged in a “Course of Alarming Conduct” Which Would Sustain a Conviction under Subsection C of the Harassment Statute.

Point VI

The Convictions of Bias Intimidation Should Have Been Dismissed by the Trial Court.

Point VII

There Was Insufficient Evidence to Support the Conviction of Misconduct in Office.

C. Scope of Review of Trial Errors.

Point VIII

The Court's Refusal to Permit the Introduction of Evidence Regarding Motive on the Part of The Employer of All of the State's Witnesses Prevented the Defendant From Being Afforded a Fair Trial and Conducting an Adequate Defense.

Point IX

The Prejudice of the 404(b) Evidence Admitted by the Court Outweighed Its Probative Value and It Should Not Have Been Admitted.

Point X

In This Case Where the Jury Had to Make So Many Findings on So Many Different and Varying Crimes It Was Error Not To Instruct Them That They Had to Be Unanimous on Each Element of Each Crime.

B.

To put the legal issues in context, we summarize the pertinent trial evidence. The Gloucester Township Department of Public Works has three divisions: the Parks and Recreation Department (Parks Department), the Roads and Streets Department (Roads Department), and the Maintenance Department. In April 2007, the supervisor of work crews at the Parks Department was Len Moffa; the director of the Parks Department was Gabe Busa; and the head of the Roads Department was Robert Tulino.

In October 1997, defendant was appointed to the permanent position of custodian, and by March 2002, he had been promoted to the position of truck driver in the Parks Department. Michael Dorazo was also a truck driver in the Parks Department. Defendant and Dorazo, both Caucasian, were “really good friends.”

During the “leaf season,” which can extend from October 1 to the first week of January, the work crews from the Parks Department and the Roads Department combined to pick up leaves. At that time, the employees worked in teams of three, consisting of one truck driver and two laborers.

In November or December of 2006, defendant, Dorazo, and several laborers were working as a group performing leaf collection. The laborers included Steven Brodie (Brodie or the victim), his brother Robert Brodie (Robert), and Rashaan McDaniel, all of whom are African–American.

According to Brodie, defendant drove up behind Dorazo's truck, exited his own truck, and walked up to Dorazo, who gave him two bungee cords, each about a foot long and fastened together. Dorazo then returned to his truck, driving the vehicle forward while McDaniel vacuumed leaves with a device attached to the truck. Brodie testified that, at one point, while the vacuum was operating, defendant tapped McDaniel once or twice lightly on the shoulder with the cords. Defendant did not say anything to McDaniel while tapping him; he did not make any racial comments. Thereafter, a “wrestling match” ensued among defendant, McDaniel, and Robert.

When asked why he viewed defendant's behavior as “racial,” Brodie testified, “I took it as ... geared towards slavery because you have a black man working and he's getting whipped as he's working. That was how I took it.”

McDaniel remembered the whipping incident differently. According to McDaniel, defendant was driving his truck, while McDaniel operated the leaf vacuum attached to the truck; Robert was there also. At some point, defendant stopped the truck, exited, and began wrestling with McDaniel and Robert. At that juncture, Dorazo exited his truck, and then found in a leaf pile a “stick with a rope on it” that looked “kind of like a horse whip.”

McDaniel testified that Dorazo cracked the stick and rope at his feet more than once and then handed the stick and rope to defendant, who also cracked it at McDaniel's feet. While this was going on, McDaniel observed that Brodie was “pretty upset,” yelling for everyone to stop the activity. After defendant finished cracking the stick and rope, he handed it to Dorazo, who put it into his truck. The men then returned to their work. McDaniel did not remember being touched by the stick and rope while it was being wielded by defendant and Dorazo, and he testified that defendant did not make any racially derogatory remarks during the incident. McDaniel viewed the wrestling as just “fun and games” but he felt the use of the stick and rope was racist and offensive.

Brodie reported the whipping incident to Tulino the next day, but no one was reprimanded. Tulino did, however, temporarily assign Brodie and the others to work with truck drivers other than defendant and Dorazo.

There was also evidence, presented by the defense, that defendant was previously disciplined for playing inappropriate practical jokes on Caucasian employees. In one incident, defendant got into a tussle with an employee in the lunchroom, after defendant threw crackers at the employee's head. In the other episode, defendant was disciplined for throwing tomatoes at a fellow employee.

The events underlying the criminal charges took place on April 4, 2007. There was heavy rain and the Township's work crews were sent to the old Public Works building, which was largely used for equipment storage. Inside the building was a “cage” that was affixed to a wall, nine feet above the floor level. The cage was accessible by way of a thirteen-step staircase that ended with a small landing by the cage door. The cage was sixteen feet wide, eight feet deep, and eight feet high, with chain-link fence walls on three sides and a concrete wall on its fourth side. It had a sliding chain-link fence door that was secured with a padlock. The top of the cage was open and about seventeen feet above the floor.

According to Brodie, the work crews in the old Public Works building were acting “out of control, like a lot of footballs were being thrown around, a lot of laughing, wild—wild stuff, stuff that shouldn't have been going on.” Brodie testified that, at some point, defendant was wrestling in the cage with another Caucasian employee, Michael Schaffer. When Schaffer exited the cage, William Grasmick, Jr., who is also Caucasian, closed the cage door and attempted to hold it shut. Defendant, however, managed to push the door open and escape from the cage. Shortly after that, Brodie got locked in the cage.

According to Brodie, Dorazo approached him and said that “Len Moffa wanted us to grab something out of that cage.” Because Dorazo referred to Moffa, Brodie construed Dorazo's comment to be a “work-related” request by a supervisor; he would not have accompanied Dorazo to the cage otherwise. Brodie climbed the staircase to the cage, followed by Dorazo. At that time, defendant was seated on an old lawn mower on the floor of the building, where he remained throughout the incident. Several other employees were also in the area.

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