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N.J. Supreme Court strikes down section of state's bias crime statute

(Administrative Office of the Courts)

NEW BRUNSWICK — The New Jersey Supreme Court struck down a portion of the state's bias crime statute today as unconstitutional, making it a bit tougher for prosecutors to prove their cases in court.

In a unanimous decision, the state's highest court said the third part of the statute that focused on the victim's state of mind was "unlike any other bias crime statute in the country."

The justices said that portion of the statute violated the Fourteenth Amendment of the United States Constitution.

"In focusing on the victim's perception and not the defendant's intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law," the justices said in a 36-page decision written by Justice Barry Albin.

The decision could have significant impact on the appeal of Dharun Ravi's convictions for bias intimidation and invading the privacy of Tyler Clementi, the 18-year-old Rutgers University student who was Ravi's roommate in September 2010. Ravi was convicted of using a remote webcam from the dorm room to spy on Clementi's intimate encounter with another man. Clementi jumped off the George Washington Bridge days later.

Ravi's attorney, Steve Altman of New Brunswick, said today's decision overturns one of Ravi's convictions and reinforces his argument on appeal that by now-retired Superior Court Judge Glenn Berman permitting the prosecution to introduce evidence of Clementi's state-of-mind, it tainted the entire verdict.

"We're ecstatic with the decision," Altman said.

The justices said by striking down the third subsection in the existing statute, it brings New Jersey's law into conformity with other bias-intimidation statutes across the nation.

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Peter Aseltine, a spokesman for the state Attorney General's Office — which argued the case before the court — said, "although we are disappointed that the Court repudiated this particular subsection of the bias-intimidation statute, we are gratified that the Court reaffirmed the constitutionality of the other two subsections."

Lawrence S. Lustberg, who represented The Association of Criminal Defense Lawyers of New Jersey, before the high court in this case, said the association, "is very pleased about the Supreme Court's decision today."

Lustberg said it is unfair to base whether an act is criminal on the victim's state of mind.

"That would mean that though two defendants committed the same acts, one might be guilty and the other might not, depending on the idiosyncracies of what the victim thought," he said. "Today, the Supreme Court held what we all believe, that this cannot be the law...We applaud the Court's decision, which is in that body's finest traditions."

The decision arises from a Camden County case in which two men who worked for the Gloucester Township Department of Public Works were charged with bias intimidation and official misconduct after an incident in 2007 in which they shut another co-worker, who was African American, into a cage in an old garage and made some disparaging remarks at him.

The men, David Pomianek Jr. and Michael Dorazo Jr. , both white, opened the cage in three to five minutes, freeing Steven Brodie Jr. But Brodie felt humiliated, the court decision said.

Pomianek and Dorazo were charged with two counts of second-degree official misconduct, 12 counts of fourth-degree bias intimidation and two counts of third-degree hindering apprehension.

The two hindering charges were dismissed before the trial and the two men went to trial separately and today's decision results from Pomianek's appeal.

Pomianek was tried in November 2010 and the jury acquitted him of all counts except one count of official misconduct and two fourth-degree bias-intimidation charges based on the third subsection, one of which said Brodie "reasonably believed'' he was the target of bias harassment. Pomianek appealed the verdict.

In 2013, the appellate division reversed the bias intimidation convictions, but remanded it to Camden County for retrial, ordering that the defendant's intent in committing the crime must also be taken into consideration.

In today's decision, the justices said the appellate court went too far and " exceeds the bounds of our authority."

Sue Epstein may be reached at sepstein@njadvancemedia.com. Follow her on Twitter @susan_epstein. Find NJ.com on Facebook.

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