State v. David Pomianek, Jr. (072293)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. David T. Pomianek, Jr. (A-32/33-13) (072293)

Argued October 20, 2014 -- Decided March 17, 2015

ALBIN, J., writing for a unanimous Court.

At issue in this appeal is the constitutionality of N.J.S.A. 2C:16-1(a)(3), a bias-crime statute that allows a
jury to convict a defendant even when bias did not motivate the commission of the offense.

Defendant David Pomianek, Jr., co-defendant Michael Dorazo, Jr., and Steven Brodie, Jr., worked for the
Parks and Recreation Division of the Gloucester Township Department of Public Works. Defendant and Dorazo,
who are Caucasian, worked as truck drivers. Brodie, who is African-American, worked as a laborer. On April 4,
2007, these men were assigned to work at an old garage used for storage by Public Works. In the garage was a
sixteen-foot long and eight-foot wide steel storage cage. The cage was enclosed by a heavy chain-link fence on
three sides and a cinder block wall on the fourth side and was secured by a sliding chain-link door with a padlock.
A number of employees were horsing around in the building and “wrestling” in the cage. In a ruse, Dorazo
approached Brodie and told him that their supervisor needed an item from the cage. Once inside the cage, Dorazo
shut the cage door, locking Brodie inside.

A number of Public Works employees began laughing, but Brodie found no humor in his predicament.
Brodie recalled defendant saying, “Oh, you see, you throw a banana in the cage and he goes right in,” which
triggered more laughter among the men. Brodie considered the remark to be “racial” in nature. From his
perspective, the line about “throwing the banana in there” was like “being called a monkey in a cage.” Brodie
admitted, however, that he never heard defendant call him a monkey. The cage door was unlocked after three to five
minutes. Brodie felt humiliated and embarrassed. After his release, Dorazo was heard saying, “You all right,
buddy? We were just joking around.” Brodie replied, “Yeah, yeah, I’m fine.”

Defendant and Dorazo were charged in a sixteen-count indictment with two counts of second-degree
official misconduct, twelve counts of fourth-degree bias intimidation, and two counts of third-degree hindering
apprehension or prosecution. The hindering charges were dismissed. The court denied defendant’s pretrial motion
to dismiss the bias-intimidation counts based on a constitutional challenge to the bias-intimidation statute. At the
conclusion of the trial, the jury acquitted defendant of all counts alleging that he falsely imprisoned or harassed
Brodie either with the purpose to intimidate him or knowing that his conduct would cause Brodie to be intimidated
because of his race, color, national origin, or ethnicity, N.J.S.A. 2C:16-1(a)(1), (a)(2). In addition, defendant was
acquitted of the lesser-included offense of false imprisonment, N.J.S.A. 2C:13-3. Defendant, however, was found
guilty of two fourth-degree bias-intimidation crimes, one for harassment by alarming conduct and the other for
harassment by communication. N.J.S.A. 2C:16-1(a)(3). The jury reached its verdict based on two discrete findings:
(1) the offenses were committed “under circumstances that caused Steven Brodie to be intimidated” and (2)
considering the manner in which those offenses were committed, Brodie “reasonably believed” either that the
offenses were “committed with a purpose to intimidate him” or that “he was selected to be the target because of his
race, color, national origin, or ethnicity.” N.J.S.A. 2C:16-1(a)(3). The jury also convicted defendant of official
misconduct, N.J.S.A. 2C:30-2(a), based in part on the finding that he committed the crime of bias intimidation.
Last, the jury convicted defendant of the petty disorderly persons’ offenses of harassment by alarming conduct and
harassment by communication, N.J.S.A. 2C:33-4(a), (c).

The Appellate Division reversed the bias-intimidation conviction, concluding that a conviction “based on
the victim’s perception” and not on the “defendant’s biased intent” would violate the First Amendment of the United
States Constitution. State v. Pomianek, 429 N.J. Super. 339, 343, 358-59 (App. Div. 2013). To save N.J.S.A.
2C:16-1(a)(3), the Appellate Division construed the statute in a way that conformed to the Constitution by imposing
a state-of-mind requirement. Because the predicate for the conviction of misconduct in office was the bias crime,

1
the panel also reversed the misconduct conviction. The Appellate Division remanded for retrial on the charges of
bias intimidation and official misconduct.

The Supreme Court granted the State’s petition for certification, 216 N.J. 363 (2013), challenging the
reversal of the bias-intimidation and misconduct-in-office convictions. The Court also granted defendant’s cross-
petition for certification.

HELD: Subsection (a)(3) of the bias-intimidation statute, N.J.S.A. 2C:16-1, fails to give adequate notice of conduct
that it proscribes, is unconstitutionally vague, and violates the Due Process Clause of the Fourteenth Amendment.

1. Under subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1, a defendant commits bias intimidation when he acts
“with a purpose to intimidate” or with “knowledge” that his conduct will intimidate a person based on an immutable
characteristic, such as a person’s race or color. Unlike subsections (a)(1) and (a)(2), subsection (a)(3) focuses not on
the state of mind of the accused, but rather on the victim’s perception of the accused’s motivation for committing the
offense. Thus, if the victim reasonably believed that the defendant committed the offense of harassment with the
purpose to intimidate or target him based on his race or color, the defendant is guilty of bias intimidation. Under
subsection (a)(3), a defendant may be found guilty of bias intimidation even if he had no purpose to intimidate or
knowledge that his conduct would intimidate a person because of his race or color. The defendant is culpable for his
words or conduct that led to the victim’s reasonable perception even if that perception is mistaken. (pp. 18-21)

2. Subsection (a)(3) of N.J.S.A. 2C:16-1 is unique among bias-crime statutes in this nation. It is the only statute
that authorizes a bias-crime conviction based on the victim’s perception that the defendant committed the offense
with the purpose to intimidate, regardless of whether the defendant actually had the purpose to intimidate. For a
defendant to be found guilty of bias intimidation in other jurisdictions, a finding of the defendant’s bias-motivated
state of mind, such as malice and specific intent, is required. (pp. 21-24)

3. The Due Process Clause of the Fourteenth Amendment of the United States Constitution guarantees that “[n]o
State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend.
XIV, § 1. A fundamental element of due process is that a law “must give fair notice of conduct that is forbidden or
required.” FCC v. Fox Television Stations, Inc., ___ U.S. ___, ___ (2012). A statute that criminalizes conduct “in
terms so vague that [persons] of common intelligence must necessarily guess at its meaning . . . violates the first
essential of due process of law.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Nothing in the history of the
bias-intimidation statute suggests that the Legislature intended to criminalize conduct through the imposition of an
amorphous code of civility or criminalize speech that was not intended to intimidate on the basis of bias. No other
bias-intimidation statute in the nation imposes criminal liability based on the victim’s reasonable perceptions.
N.J.S.A. 2C:16-1(a)(3) fails to set a standard that places a reasonably intelligent person on notice when he is
crossing a proscribed line. The statute criminalizes defendant’s failure to apprehend the reaction that his words
would have on another. (pp. 24-33)

4. The Court disagrees with the Appellate Division’s approach, which reads into subsection (a)(3) a mens rea
element that is absent from the statute. The Legislature pointedly decided not to include such an element in
subsection (a)(3), which is evident by the presence of mens rea elements in subsections (a)(1) and (a)(2). The
Appellate Division has reconfigured subsection (a)(3) to read as a mirror image of subsection (a)(1). Rewriting the
statute in that manner is not merely beyond the Court’s authority but is redundant and therefore serves no purpose.
The Court has no option but to strike the constitutionally defective subsection (a)(3) of N.J.S.A. 2C:16-1. With the
striking of subsection (a)(3), New Jersey’s bias-intimidation law now conforms to its original form, its legislative
history, the laws of the rest of the nation, and the United States Constitution. (pp. 32-36)

The judgment of the Appellate Division is REVERSED, the bias-intimidation and misconduct-in-office
convictions are dismissed, and the matter is REMANDED to the trial court for entry of judgment consistent with the
Court’s opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA and
SOLOMON join in JUSTICE ALBIN’s opinion; JUDGE CUFF (temporarily assigned) did not participate.

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 SUPREME COURT OF NEW JERSEY
A-32/33 September Term 2013
072293

STATE OF NEW JERSEY,

Plaintiff-Appellant
and Cross-Respondent,

v.

DAVID T. POMIANEK, JR.,

Defendant-Respondent
and Cross-Appellant.

Argued October 20, 2014 – Decided March 17, 2015

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 429 N.J. Super. 339 (App. Div.
2013).

Ronald Susswein, Assistant Attorney General,
argued the cause for appellant and cross-
respondent (John J. Hoffman, Acting Attorney
General of New Jersey, attorney).

F. Michael Daily, Jr., argued the cause for
respondent and cross-appellant.

Frank L. Corrado argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Barry, Corrado & Grassi and
Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom &
Sinins, attorneys; Mr. Corrado, Rubin M.
Sinins, Annabelle M. Steinhacker, and Edward
L. Barocas, on the brief).

Lawrence S. Lustberg argued the cause for
amicus curiae The Association of Criminal
Defense Lawyers of New Jersey (Gibbons,
attorneys; Mr. Lustberg and Amanda B.
Protess, on the brief).

1
 Taryn L. Weiss argued the cause for amicus
curiae The Rutherford Institute (Seth
Grossman & Robert Loefflad, attorneys; Mr.
Grossman, on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

At issue in this appeal is the constitutionality of

N.J.S.A. 2C:16-1(a)(3), a bias-crime statute that allows a jury

to convict a defendant even when bias did not motivate the

commission of the offense. Under the statute, a defendant may

be convicted of bias intimidation if the victim “reasonably

believed” that the defendant committed the offense on account of

the victim’s race. Unlike any other bias-crime statute in the

country, N.J.S.A. 2C:16-1(a)(3) focuses on the victim’s, not the

defendant’s, state of mind. The defendant’s fate depends not on

whether bias was the purpose for the commission of the crime but

on whether the victim “reasonably believed” that was the

purpose. Whether a victim reasonably believes he was targeted

for a bias crime will necessarily be informed by the victim’s

individual experiences and distinctive cultural, historical, and

familial heritage –- all of which may be unknown or unknowable

to the defendant.

Although a jury found defendant David Pomianek, Jr., guilty

of the disorderly persons’ offense of harassment, it found him

not guilty of purposely or knowingly harassing the victim

2
because of the victim’s race or color. The jury, however,

convicted defendant of bias harassment on the ground that the

victim either “reasonably believed that the harassment was

committed with a purpose to intimidate him” or that “he was

selected to be the target [of harassment] because of his race

[or] color.” Based on the bias-intimidation verdict, defendant

was also convicted of official misconduct.

The Appellate Division reversed the bias-harassment

conviction. It concluded that a conviction “based on the

victim’s perception” and not on the “defendant’s biased intent”

would violate the First Amendment of the United States

Constitution. State v. Pomianek, 429 N.J. Super. 339, 343, 358-

59 (App. Div. 2013). To save N.J.S.A. 2C:16-1(a)(3), the

Appellate Division rewrote the statute to impose a state-of-mind

requirement and remanded for a new trial on both bias harassment

and official misconduct. Id. at 343-44.

We hold that N.J.S.A. 2C:16-1(a)(3), due to its vagueness,

violates the Due Process Clause of the Fourteenth Amendment. 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. That is so

because a defendant may be convicted of a bias crime even though

a jury may conclude that the defendant had no intent to commit

such a crime. We are therefore constrained to reverse

3
defendant’s bias-intimidation convictions as well as his

official-misconduct conviction, which was predicated on the

bias-crime finding. Last, we disagree with the Appellate

Division that we can rewrite N.J.S.A. 2C:16-1(a)(3) to impose

the same state-of-mind requirements found in N.J.S.A. 2C:16-

1(a)(1). That level of judicial tinkering with legislation

exceeds the bounds of our authority. In light of our resolution

of this issue, we find no need to address the First Amendment

issues on which the Appellate Division premised its holding.

Accordingly, we affirm in part and reverse in part the

judgment of the Appellate Division.

I.

A.

Defendant David Pomianek, Jr., and co-defendant Michael

Dorazo, Jr., were charged in a sixteen-count indictment with two

counts of second-degree official misconduct, N.J.S.A. 2C:30-

2(a); twelve counts of fourth-degree bias intimidation, N.J.S.A.

2C:16-1(a)(1), (a)(2), (a)(3)(a), and (a)(3)(b); and two counts

of third-degree hindering apprehension or prosecution, N.J.S.A.

2C:29-3(b)(3).1 The court denied defendant’s pretrial motion to

dismiss the bias-intimidation counts based on a constitutional

1 The trial court dismissed the hindering-apprehension counts
with the consent of the State.
4
challenge to the bias-intimidation statute. Defendant and

Dorazo were granted separate trials.

Defendant was tried before a jury from November 30 to

December 9, 2010. The following record was developed at trial.2

The events relevant to this appeal occurred on April 4,

2007, in an old garage used for storage by the Gloucester

Township Department of Public Works. A number of Public Works

employees were assigned to the building that day, including

defendant, Dorazo, and Steven Brodie, Jr. The three men worked

in the Parks and Recreations Division. Defendant and Dorazo,

who are Caucasian, worked as truck drivers. Brodie, who is

African-American, worked as a laborer. The hierarchy in the

Parks Division is supervisor, truck driver, and laborer.

Brodie testified that a number of the employees were

horsing around in the building -- throwing footballs and acting

“out of control.” In the building was a sixteen-foot long and

eight-foot wide steel storage cage on a landing, thirteen steps

above ground level. The cage was enclosed by a heavy chain-link

fence on three sides and a cinder block wall on the fourth side

and was secured by a sliding chain-link door with a padlock.

According to Brodie, defendant was wrestling with a coworker in

2 For a more detailed discussion of the facts, see State v.
Pomianek, 429 N.J. Super. 339 (App. Div. 2013).
5
the storage cage. The coworker attempted to close the cage door

on defendant, but defendant managed to slip through it.

Shortly afterwards, in a ruse, Dorazo approached Brodie and

told him that their supervisor needed an item from the cage.

Brodie dutifully walked up the steps into the cage and asked

Dorazo, “Where is it?” Then, Dorazo shut the cage door, locking

Brodie inside.

A number of Public Works Department employees began

laughing, but Brodie found no humor in his predicament. At the

time, defendant was sitting on a lawnmower on the ground level

of the garage. Brodie recalled defendant saying, “Oh, you see,

you throw a banana in the cage and he goes right in,” which

triggered more laughter among the men, including defendant and

Dorazo. Brodie considered the remark to be “racial” in nature.

To Brodie, this was not a harmless caper; instead, he “was

locked in a cage like an animal.” From his perspective, the

line about “throwing the banana in there” was like “being called

a monkey in a cage.” Brodie admitted, however, that he never

heard defendant call him a monkey.

Brodie remained in the cage for three to five minutes until

an employee unlocked the sliding door. Brodie felt humiliated

and embarrassed. After his release, Brodie walked into the new

Public Works building, followed by Dorazo, who said, “You all

6
right, buddy? We were just joking around.” Brodie replied,

“Yeah, yeah, I’m fine.”

Two Parks Division employees generally corroborated

Brodie’s account. One testified that defendant said, “You can

throw a banana in a cage and lock a monkey in there,” and the

other remembered defendant calling out, “He looks like a monkey

in a cage, let’s throw him some bananas.” The two witnesses

maintained that defendant’s voice could be heard from a distance

but, as noted, Brodie did not hear the reference to “monkey.”

Brodie also testified to another incident involving

defendant and Dorazo that he believed had racial overtones.

Several months earlier, an African-American laborer, Rashaan

McDaniel, was vacuuming leaves on the street with a hose

attached to a truck that Dorazo was driving. Brodie observed

Dorazo give two bungee cords to defendant, who from behind began

lightly “tapping” McDaniel on the shoulders with the cords.

Brodie did not consider defendant’s hijinks a joking matter. In

Brodie’s view, defendant was making a statement about “slavery

because [there was] a black man working and he’s getting whipped

as he’s working.” No criminal charges arose from that incident.

B.

At the conclusion of the trial, the jury acquitted

defendant of all counts alleging that he falsely imprisoned or

harassed Brodie either with the purpose to intimidate him or

7
knowing that his conduct would cause Brodie to be intimidated

because of his race, color, national origin, or ethnicity,

N.J.S.A. 2C:16-1(a)(1), (a)(2). In addition, defendant was

acquitted of the lesser-included offense of false imprisonment,

N.J.S.A. 2C:13-3.

Defendant, however, was found guilty of two fourth-degree

bias-intimidation crimes, one for harassment by alarming conduct

and the other for harassment by communication. N.J.S.A. 2C:16-

1(a)(3). The jury reached its verdict based on two discrete

findings: (1) the offenses were committed “under circumstances

that caused Steven Brodie to be intimidated” and (2) considering

the manner in which those offenses were committed, Brodie

“reasonably believed” either that the offenses were “committed

with a purpose to intimidate him” or that “he was selected to be

the target because of his race, color, national origin, or

ethnicity.” N.J.S.A. 2C:16-1(a)(3). The jury also convicted

defendant of official misconduct, N.J.S.A. 2C:30-2(a), based in

part on the finding that he committed the crime of bias

intimidation. The jury was charged that it could not find

defendant guilty of misconduct in office unless it first

determined that he had committed a crime. The bias-intimidation

convictions, therefore, were a necessary predicate to the

8
misconduct-in-office verdict.3 Last, the jury convicted

defendant of the petty disorderly persons’ offenses of

harassment by alarming conduct and harassment by communication,

N.J.S.A. 2C:33-4(a), (c).

C.

The trial court sentenced defendant on the charge of

second-degree official misconduct to a four-year probationary

term, conditioned on defendant serving 270 days on weekends in

the county jail.4 The court imposed the identical sentence on

each of the bias-intimidation counts and imposed a thirty-day

term on the harassment count. All of the sentences were made to

run concurrent to one another. In addition, the court imposed

statutorily required fines and penalties.

Defendant appealed.

II.

A.

3 At trial, the State and defendant agreed that a finding of
guilt of official misconduct required a finding that defendant
had committed a predicate crime. As reflected on the jury
verdict sheet, the jury found defendant guilty of official
misconduct based on its determination that defendant committed
the crimes of bias intimidation.

4 The presumptive period of incarceration for a second-degree
crime is between five and ten years. N.J.S.A. 2C:43-6(a)(2).
The trial court exercised its discretion to impose a sentence
one degree lower pursuant to N.J.S.A. 2C:44-1(f)(2).
9
 The Appellate Division reversed defendant’s bias-

intimidation convictions under N.J.S.A. 2C:16-1(a)(3) because

the trial court read N.J.S.A. 2C:16-1(a)(3) as it was written

and did not “charge the jury that the State was required to

prove defendant’s bias-motivated purpose in committing the

crime.” Pomianek, supra, 429 N.J. Super. at 361. Because the

predicate for the conviction of misconduct in office was the

bias crime, the panel also reversed the misconduct conviction.

Ibid.

The panel ultimately determined “that N.J.S.A. 2C:16-1a(3)

would be unconstitutional if [the statute] 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.” Id. at 343. The panel reached that

conclusion because the statute, if construed otherwise, would

“run afoul of the First Amendment principles espoused in

[Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d

535 (2003), R.A.V. v. St. Paul, 505 U.S. 377, 112 S. Ct. 2538,

120 L. Ed. 2d 305 (1992), and State v. Vawter, 136 N.J. 56,

cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351

10
(1994)].” Id. at 358-59. It therefore construed the statute in

a way that conformed to the Constitution.5 Id. at 343, 358-59.

The panel “reject[ed] the State’s argument that N.J.S.A.

2C:16-1(a)(3) imposes criminal liability based solely on the

victim’s perception of the underlying crime, regardless of the

defendant’s intent.” Id. at 358. Instead, the panel reasoned

that, from the entirety of N.J.S.A. 2C:16-1’s legislative

history, if not from the specific wording of N.J.S.A. 2C:16-

1(a)(3), it could infer that N.J.S.A. 2C:16-1(a)(3) “requires

proof of intent with respect to each element of the offense[].”

Ibid. Accordingly, the panel mandated that a conviction under

N.J.S.A. 2C:16-1(a)(3) must include findings that the defendant

(1) “intend[ed] to commit the predicate offense,” (2)

“intend[ed] to intimidate the victim because of his or her

membership in a protected class,” and (3) “intend[ed] to cause

the victim to perceive the underlying offense as being bias-

motivated.” Ibid.

The Appellate Division affirmed defendant’s convictions of

harassment by communication, N.J.S.A. 2C:33-4(a), and harassment

5 The Appellate Division did not address defendant’s argument
that N.J.S.A. 2C:16-1(a)(3) violates due process on vagueness
grounds. Defendant maintained that tying a defendant’s guilt to
“the subjective feelings of the alleged victim” does not “‘give
fair notice of conduct that is forbidden,’” State v. Allen, 334
N.J. Super. 133, 137 (Law Div. 2000) (quoting State v. Lee, 96
N.J. 156, 165 (1984)).
11
by alarming conduct, N.J.S.A. 2C:33-4(c), and remanded for

retrial on the charges of bias intimidation and official

misconduct. Id. at 365.

B.

We granted the State’s petition for certification, State v.

Pomianek, 216 N.J. 363 (2013), challenging the reversal of the

bias-intimidation and misconduct-in-office convictions. We also

granted defendant’s cross-petition for certification, limited to

four issues:

(1) whether N.J.S.A. 2C:16-1(a)(3) chills
expression and/or violates due process;

(2) whether the Appellate Division
impermissibly applied the canon of
constitutional avoidance to save N.J.S.A.
2C:16-1(a)(3) from invalidation;

(3) assuming the Appellate Division was
correct in interpreting N.J.S.A. 2C:16-
1(a)(3) to require a showing of intent on the
part of the actor, whether defendant is
entitled as a matter of law to a dismissal of
the bias charges on account of double
jeopardy; and

(4) whether a laugh can constitute a “benefit”
within the meaning of N.J.S.A. 2C:[3]0-2(a).6

[Id. at 359.]

We also granted the motions of the Rutherford Institute,

the American Civil Liberties Union of New Jersey (ACLU), and the

6 In light of our disposition of the first three issues, we need
not address this fourth issue.
12
Association of Criminal Defense Lawyers of New Jersey (ACDL) to

participate as amici curiae.

III.

A.

The State argues that N.J.S.A. 2C:16-1(a)(3) (subsection

(a)(3)) does not run afoul of the First Amendment because it

does not criminalize protected speech or expressive conduct per

se, but only applies to “words that are expressed in the course

of committing some other substantive crime -- one that is

message-content neutral.” Simply stated, the State posits that,

under the First Amendment, “a purpose to cause bias intimidation

is not required where the defendant’s speech is communicated in

the course of committing a predicate crime,” and to the extent

that mens rea is a constitutional prerequisite, defendant’s

“purpose to harass” satisfied that requirement. Although the

State acknowledges that the Courts in Wisconsin v. Mitchell, 508

U.S. 476, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993), and State

v. Mortimer, 135 N.J. 517, cert. denied, 513 U.S. 970, 115 S.

Ct. 440, 130 L. Ed. 2d 351 (1994), did not have “occasion to

address the constitutionality of a bias intimidation statute

that does not require proof of the defendant’s specific intent

to intimidate,” the State reasons that those cases “should not

be read to foreclose a bias intimidation penalty-

enhancement/target selection statute that employs a different

13
culpable mental state.” In the State’s view, a purposeful state

of mind is not required because subsection (a)(3) merely

enhances the penalty for an underlying crime that is content-

neutral and does not criminalize speech.

The State rejects the notion that subsection (a)(3) is

unconstitutionally vague “because it upgrades the predicate

crime based on the victim’s perception of the defendant’s

conduct.” The State insists that the victim’s objectively

reasonable perception of the defendant’s intent to intimidate on

the basis of bias satisfies the mens rea requirement and gives

fair notice for due process purposes. According to the State,

the First and Fourteenth Amendments do not protect a defendant

from his “subjective ignorance or indifference as a defense to

bias intimidation.”

Moreover, to the extent that subsection (a)(3) can be

characterized as a “strict liability” statute, the State submits

that it is no different than other statutes that criminalize

activity based on attendant circumstances without regard to the

defendant’s mental state. One such strict-liability statute,

according to the State, is N.J.S.A. 2C:35-7(a), which penalizes

drug distribution within 1000 feet of a school zone, even when

the defendant is unaware of his location.

Last, the State claims that the Appellate Division erred in

rewriting the statute to engraft a purposeful mens rea

14
requirement onto subsection (a)(3) that is identical to the one

found in N.J.S.A. 2C:16-1(a)(1) (subsection (a)(1)). Because

defendant was acquitted of a subsection (a)(1) violation, the

State concedes that defendant could not be retried on a newly

framed statute that is the mirror image of subsection (a)(1).

B.

Defendant urges that we affirm the Appellate Division’s

conclusion that N.J.S.A. 2C:16-1(a)(3), as written, violates

free-speech principles by chilling expression on disfavored

topics. Alternatively, defendant argues that N.J.S.A. 2C:16-

1(a)(3), by focusing on what a “reasonable” victim believes is

the defendant’s motivation rather than on what the defendant

actually intends, fails to give a person of reasonable

intelligence fair notice of the conduct that is forbidden.

Defendant maintains that the statute offends the Due Process

Clause of the Fourteenth Amendment on vagueness grounds because

“[a] defendant should not be obliged to guess whether his

conduct is criminal,” quoting State v. Lee, 96 N.J. 156, 165-66

(1984). Defendant also contends that unlike such strict-

liability statutes as the one enhancing criminal penalties for

drug distribution within 1000 feet of a school-zone, where the

boundary of a school zone is an objective fact, N.J.S.A. 2C:35-

7(a), subsection (a)(3) criminalizes a defendant’s conduct based

on the victim’s perception.

15
 Defendant submits that the Appellate Division erred by

invoking the canon of constitutional avoidance to rewrite the

statute. The canon instructs courts to avoid construing a

statute in a way that would lead to its invalidation. That

canon does not apply, according to defendant, because N.J.S.A.

2C:16-1(a)(3) is not reasonably susceptible to alternate

interpretations. Defendant also posits that prosecuting him

under the reconstructed statute, which mirrors N.J.S.A. 2C:16-

1(a)(3), would violate double jeopardy principles because he was

acquitted of a subsection (a)(1) offense.

Additionally, defendant submits that under the newly

constructed provision, a conviction under subsection (a)(3)

cannot be obtained without proof of all of the elements for a

conviction under subsection (a)(1). Thus, based on defendant’s

acquittal of the charge under subsection (a)(1), defendant

cannot be retried for a violation of subsection (a)(3).

C.

Amici, the Rutherford Institute, ACLU, and ACDL,

collectively and individually advance arguments similar to those

made by defendant. Amici contend that N.J.S.A. 2C:16-1(a)(3)

cannot be reconciled with bedrock principles undergirding the

First Amendment because defendant’s conviction was based on

statements that were deemed offensive and insensitive by the

victim -- and perhaps by the jury -- and not based on

16
defendant’s subjective motivations. In amici’s view, the jury

rested its verdict on the victim’s perception of defendant’s

“politically incorrect” remarks, given that “the jury rejected

the charge that [defendant] was actually motivated by improper

bias.”

Amici echo defendant’s due process argument that N.J.S.A.

2C:16-1(a)(3) does not give fair notice of where the line is

drawn for conduct that is proscribed because the victim’s

“belief will depend wholly upon the thoughts, memories or

experiences of which [the defendant] almost certainly cannot

know.” Amici note that one of the purposes of the traditional

scienter requirement is to give clear notice of acts that are

criminal in nature. That notice is absent when criminality

depends on whether the victim reasonably believes he was

targeted on the basis of bias rather than on the defendant’s

subjective intent. Amici emphasize that a defendant “cannot

control and may not even be aware of” the victim’s beliefs and

that “there is a real risk that bias will be reasonably

perceived by a victim even where it does not exist.”

IV.

The primary issue before us is one of constitutional

interpretation -- whether subsection (a)(3) of the bias-

intimidation statute, N.J.S.A. 2C:16-1, violates the free speech

guarantee of the First Amendment and the Due Process Clause of

17
the Fourteenth Amendment of the United States Constitution.

Because the issue is purely legal in nature, we owe no deference

to either the trial court’s or Appellate Division’s conclusions

of law. State v. Vargas, 213 N.J. 301, 327 (2013); see also

Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)

(noting that “interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference”). Our review therefore is de novo.

Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999).

We begin with a discussion of the text and history of the

bias-intimidation statute, N.J.S.A. 2C:16-1, and then examine

whether subsection (a)(3) of N.J.S.A. 2C:16-1 satisfies the due

process demands of the Fourteenth Amendment. We must answer

whether the line separating lawful from criminal conduct in

subsection (a)(3) is so vague that a reasonable person would not

have fair notice when that line is crossed. The answer raises

interrelated First Amendment concerns. Nevertheless, only if

subsection (a)(3) can survive due process scrutiny is it

necessary to engage in a First Amendment analysis.

We now turn to the text of the bias-intimidation statute.

V.

A.

N.J.S.A. 2C:16-1 provides:

18
a. A person is guilty of the crime of bias
intimidation if he commits, attempts to
commit, conspires with another to commit, or
threatens the immediate commission of an
offense specified in chapters 11 through 18 of
Title 2C of the New Jersey Statutes; N.J.S.
2C:33-4; N.J.S. 2C:39-3; N.J.S. 2C:39-4 or
N.J.S. 2C:39-5,

(1) with a purpose to intimidate an
individual or group of individuals
because of race, color, religion,
gender, disability, sexual orientation,
gender identity or expression, national
origin, or ethnicity; or

(2) knowing that the conduct
constituting the offense would cause
an individual or group of
individuals to be intimidated because
of race, color, religion, gender,
disability, sexual orientation, gender
identity or expression, national
origin, or ethnicity; or

(3) under circumstances that caused any
victim of the underlying offense to be
intimidated and the victim, considering
the manner in which the offense was
committed, reasonably believed either
that (a) the offense was committed with
a purpose to intimidate the victim or
any person or entity in whose welfare
the victim is interested because of
race, color, religion, gender,
disability, sexual orientation, gender
identity or expression, national
origin, or ethnicity, or (b) the victim
or the victim’s property was selected
to be the target of the offense because
of the victim’s race, color, religion,
gender, disability, sexual orientation,
gender identity or expression, national
origin, or ethnicity.

19
Generally, bias intimidation is punishable by a sentence one

degree higher than the underlying crime that forms the basis for

the bias-intimidation charge. N.J.S.A. 2C:16-1(c). In this

case, the underlying charges were the petty disorderly persons’

offenses of harassment by communication and alarming conduct.

N.J.S.A. 2C:33-4(a), (c). Harassment is punishable by a

sentence not to exceed thirty days’ imprisonment. N.J.S.A.

2C:43-8. However, when the victim of the harassment is

subjected to bias intimidation, a fourth-degree crime has been

committed, N.J.S.A. 2C:16-1(c), and the crime is punishable by a

sentence not to exceed eighteen months’ imprisonment, N.J.S.A.

2C:43-6(a)(4).

Under subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1, a

defendant commits bias intimidation when he acts “with a purpose

to intimidate” or with “knowledge” that his conduct will

intimidate a person based on an immutable characteristic, such

as a person’s race or color. Those state-of-mind requirements

are the traditional means of determining criminal liability.

United States v. Bailey, 444 U.S. 394, 402-04, 100 S. Ct. 624,

630-31, 62 L. Ed. 2d 575, 586-87 (1980). Unlike subsections

(a)(1) and (a)(2), subsection (a)(3) focuses not on the state of

mind of the accused, but rather on the victim’s perception of

the accused’s motivation for committing the offense. Thus, if

the victim reasonably believed that the defendant committed the

20
offense of harassment with the purpose to intimidate or target

him based on his race or color, the defendant is guilty of bias

intimidation. N.J.S.A. 2C:16-1(a)(3). Under subsection (a)(3),

a defendant may be found guilty of bias intimidation even if he

had no purpose to intimidate or knowledge that his conduct would

intimidate a person because of his race or color. In other

words, an innocent state of mind is not a defense to a

subsection (a)(3) prosecution; the defendant is culpable for his

words or conduct that led to the victim’s reasonable perception

even if that perception is mistaken.

B.

Subsection (a)(3) was not part of New Jersey’s original

“hate crime” law. The original version provided for an extended

term of imprisonment if, at sentencing, the trial judge found by

a preponderance of evidence that “[t]he defendant in committing

the crime acted with a purpose to intimidate an individual or

group of individuals because of race, color, gender, handicap,

religion, sexual orientation or ethnicity.” L. 1995, c. 211, §

3 (emphasis added) (codified as amended at N.J.S.A. 2C:44-3(e),

invalidated by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000)). The United States Supreme

Court struck down that statute because it allowed the trial

court to impose a sentence greater than the one authorized by

the jury verdict in contravention of the Sixth Amendment right

21
to trial by jury. Apprendi, supra, 530 U.S. at 490, 120 S. Ct.

at 2362-63, 147 L. Ed. 2d at 455. Apprendi made clear that bias

motivation in the sentence-enhancement provision, N.J.S.A.

2C:44-3(e), was an element of the offense, disguised as a

sentencing factor. Apprendi, supra, 530 U.S. at 490, 120 S. Ct.

at 2362-63, 147 L. Ed. 2d at 455. Notably, N.J.S.A. 2C:44-3(e)

hinged a sentence enhancement on a defendant’s intent to

intimidate, not on the victim’s perception of defendant’s

motivation.

In response to Apprendi, the Legislature enacted N.J.S.A.

2C:16-1, the current bias-intimidation statute. L. 2001, c.

443, § 1. The original bill sponsored in the Senate corrected

the constitutional defect in N.J.S.A. 2C:44-3(e) and provided

that the purpose to intimidate on the basis of bias would be

treated as an element of the offense and tried to the jury. S.

1897, 209th Leg. (2000). Later, a substitute bill was

introduced that included the present version of section (a)(3),

which unlike sections (a)(1) and (a)(2), contains no scienter

requirement. S. Comm. Substitute for S. 1897, 209th Leg.

(2000). The legislative history gives no insight into the

Legislature’s reason for including subsection (a)(3). The

Senate Judiciary Committee and Assembly Judiciary Committee

Statements to the substitute bill (Senate Bill No. 1897),

enacted into law as N.J.S.A. 2C:16-1, explained that a “person

22
would be guilty of bias intimidation if the person commits any

crime listed in the bill with a purpose to intimidate an

individual or group of individuals because of race, color,

religion, gender, handicap, sexual orientation or ethnicity.”

Assemb. Judiciary Comm. Statement to S. No. 1897, 209th Leg.

(May 7, 2001) (emphasis added); S. Judiciary Comm. Statement to

S. No. 1897, 209th Leg. (Dec. 14, 2000) (emphasis added). In

those Statements, no mention is made of the provision that

allows for a bias-crime conviction based on a victim’s

reasonable belief that a defendant possessed a purpose to commit

bias intimidation, even if the defendant had no such purpose.

Subsection (a)(3) of N.J.S.A. 2C:16-1 is unique among bias-

crime statutes in this nation. It is the only statute that

authorizes a bias-crime conviction based on the victim’s

perception that the defendant committed the offense with the

purpose to intimidate, regardless of whether the defendant

actually had the purpose to intimidate. See Alison M. Smith &

Cassandra L. Foley, Cong. Research Serv., State Statutes

Governing Hate Crimes (2010). For a defendant to be found

guilty of bias intimidation in other jurisdictions, a finding of

the defendant’s bias-motivated state of mind, such as malice and

specific intent, is required. See, e.g., Colo. Rev. Stat. § 18-

9-121(2) (2014) (“A person commits a bias-motivated crime if,

with the intent to intimidate or harass another person because

23
of that person’s actual or perceived race, color, religion,

ancestry, national origin, physical or mental disability, or

sexual orientation . . . .”); Idaho Code Ann. § 18-7902 (2014)

(“It shall be unlawful for any person, maliciously and with the

specific intent to intimidate or harass another person because

of that person’s race, color, religion, ancestry, or national

origin . . . .”); Okla. Stat. tit. 21, § 850 (2013) (“No person

shall maliciously and with the specific intent to intimidate or

harass another person because of that person’s race, color,

religion, ancestry, national origin or disability . . . .”).

Those out-of-state statutes are comparable to subsections (a)(1)

and (a)(2) of N.J.S.A. 2C:16-1.

With this backdrop, we next address whether subsection

(a)(3) of N.J.S.A. 2C:16-1 passes muster under the Due Process

Clause of the Fourteenth Amendment.

VI.

A.

The Due Process Clause of the Fourteenth Amendment of the

United States Constitution guarantees that “[n]o State shall . .

. deprive any person of life, liberty, or property, without due

process of law . . . .” U.S. Const. amend. XIV, § 1. A

fundamental element of due process is that a law “must give fair

notice of conduct that is forbidden or required.” FCC v. Fox

Television Stations, Inc., ___ U.S. ___, ___, 132 S. Ct. 2307,

24
2317, 183 L. Ed. 2d 234, 245 (2012). “A conviction fails to

comport with due process if the statute under which it is

obtained fails to provide a person of ordinary intelligence fair

notice of what is prohibited . . . .” United States v.

Williams, 553 U.S. 285, 304, 128 S. Ct. 1830, 1845, 170 L. Ed.

2d 650, 669 (2008). A person should be on notice that he is

engaged in wrongdoing before he “is brought to the bar of

justice for condemnation in a criminal case.” Lambert v.

California, 355 U.S. 225, 228, 78 S. Ct. 240, 243, 2 L. Ed. 2d

228, 231 (1957).

A statute that criminalizes conduct “in terms so vague that

[persons] of common intelligence must necessarily guess at its

meaning . . . violates the first essential of due process of

law.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618,

619, 83 L. Ed. 888, 890 (1939) (internal quotation marks

omitted). The inherent vice in vague laws is that they do not

draw clear lines separating criminal from lawful conduct. See

Lee, supra, 96 N.J. at 165 (noting that “vagueness test demands

that a law be sufficiently clear and precise so that people are

given notice and adequate warning of the law’s reach”) (internal

quotation marks omitted). A penal statute should not be “a

trap” for the unwary. Id. at 166.

In Mortimer, supra, we ultimately rejected a due process

vagueness challenge to the entirety of N.J.S.A. 2C:33-4(d)

25
(repealed by L. 2001, c. 443, § 3), which classified as a

fourth-degree crime harassment that is motivated by bias.7 135

N.J. at 535. N.J.S.A. 2C:33-4(d) criminalized the defendant’s

conduct if the defendant “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.” We struck from the

statute the language -- “at least in part with ill will, hatred

or bias toward” -- on vagueness grounds because those words

failed to give sufficient notice of “what that part of the

statute proscribe[d].” Mortimer, supra, 135 N.J. at 533. The

reconstructed statute read as follows: “A person commits a

crime of the fourth degree if in committing an offense under

this section, he acted . . . with a purpose to intimidate an

individual or group of individuals because of race, color,

religion, sexual orientation or ethnicity.” Id. at 534. The

reconstructed statute survived due process scrutiny because the

statute’s mens rea -- “with purpose to intimidate” -- penalizes

a defendant who “selects a victim because of the victim’s group

identification or inherent characteristics.” Id. at 534-35

(emphasis added). Although we upheld “subsection d, thereby

permitting an inquiry into a person’s motive to commit one of

7 N.J.S.A. 2C:33-4(d) was repealed and replaced by N.J.S.A.
2C:16-1.
26
the predicate offenses, we caution[ed] that our decision [was]

not an invitation to inquire into an actor’s beliefs,

expressions, and associations generally.” Id. at 538 (emphasis

added).

The United States Supreme Court in Mitchell, supra,

likewise rejected a constitutional challenge to a statute that

provided for a penalty enhancement when the defendant

“intentionally” committed certain crimes because of an immutable

characteristic, such as race, religion, or color. 508 U.S. at

480, 490, 113 S. Ct. at 2197, 2202, 124 L. Ed. 2d at 442, 448.

The statute passed muster under the First and Fourteenth

Amendments because a defendant is not punished because of his

“bigoted beliefs” but because of his “discriminatory motive.”

Id. at 485, 113 S. Ct. at 2199, 124 L. Ed. 2d at 445. The Court

recognized that “bias-motivated crimes are more likely to

provoke retaliatory crimes, inflict distinct emotional harms on

their victims, and incite community unrest.” Id. at 488, 113 S.

Ct. at 2201, 124 L. Ed. 2d at 447.

What distinguishes the statutes upheld in Mortimer and

Mitchell from subsection (a)(3) of N.J.S.A. 2C:16-1 is that in

those statutes the defendant is penalized for intentionally

targeting the victim based on an immutable characteristic, such

as race or color, whereas subsection (a)(3) penalizes the

defendant even if he has no motive to discriminate, so long as

27
the victim reasonably believed he acted with a discriminatory

motive.

While the State is correct that our upholding of the

constitutionality of the bias-harassment statute in Mortimer

does not ineluctably lead to the conclusion that subsection

(a)(3) is unconstitutional, the reasoning in Mortimer lends no

support to the State’s argument. Indeed, the concern we

expressed in Mortimer, supra, 135 N.J. at 538 -- the need to

avoid “inquiry into an actor’s beliefs, expressions, and

associations generally” -- may be realized when the focus is on

the victim’s reasonable perceptions as opposed to the

defendant’s actual motivation. A bigot who harasses a neighbor

for no reason other than that the neighbor is playing music too

loudly in the evening may be convicted of bias intimidation

under subsection (a)(3) if the neighbor reasonably believes,

under the circumstances, that the bigot acted based on his

racial, religious, or nativist sentiments. That is because

subsection (a)(3) does not require that a defendant have a bias

motive to be convicted of bias intimidation. Significantly, we

found that the statute in Mortimer was “rationally related to

[a] legitimate State interest” because criminalizing “bias-

motivated harassment” advanced the goal of deterrence. Id. at

537. The goal of deterrence surely is diminished when a person

has no motive to commit a bias crime and is unaware that his

28
conduct or speech has crossed over into the realm of criminal

misconduct.

The State compares subsection (a)(3) of N.J.S.A. 2C:16-1 to

other strict-liability statutes, but statutes without scienter

requirements have due process limitations. A strict-liability

statute will violate due process if it “offend[s] fundamental

notions of justice.” State v. Maldonado, 137 N.J. 536, 555

(1994). The due process bar to a strict-liability statute

applies “when the underlying conduct is so passive, so unworthy

of blame, that the persons violating the proscription would have

no notice that they were breaking the law.” Ibid. As with

vague statutes, notice is a key component to a due process

review of strict-liability statutes. Strict-liability statutes

that have withstood constitutional scrutiny typically involve an

element of an offense that involves an ascertainable fact of

which a defendant can make himself aware to avoid criminal

liability.

For example, N.J.S.A. 2C:35-7(a), a statute criminalizing

the distribution of drugs within 1000 feet of a school, is

constitutional without requiring proof that the defendant knew

that he was within the prohibited zone. United States v.

Holland, 810 F.2d 1215, 1224 (D.C. Cir. 1987). Significantly, a

defendant has the ability to determine his location in

relationship to a school. In State v. Fearick, 69 N.J. 32, 38

29
(1976), we rejected the constitutional challenge to a statute

that imposed a mandatory jail sentence on a defendant who was

involved in an accident while driving with a suspended license.

The statute did not accord defendant a defense based on his lack

of fault in causing the accident. Id. at 35-36. Notably, a

defendant is on statutory notice that if he drives while

suspended, the happenstance of an accident, even if not his

fault, would subject him to a harsh penalty. In Maldonado,

supra, 137 N.J. at 554-55, we upheld the constitutionality of a

statute that imposed strict liability on a drug distributor

whose drugs proximately caused death. The defendant was on

notice of the inherent dangers of drugs and their potential to

cause death.8 Id. at 556.

Unlike the defendants in those cases involving strict-

liability statutes, defendant here could not readily inform

8 The State compares N.J.S.A. 2C:16-1(a)(3) to the stalking
statute, N.J.S.A. 2C:12-10, which we addressed in State v.
Gandhi, 201 N.J. 161 (2010). Unlike N.J.S.A. 2C:16-1(a)(3), the
stalking statute has a mens rea component. The stalking statute
provides that a defendant is guilty of a crime “if he
purposefully or knowingly engages in a course of conduct
directed at a specific person that would cause a reasonable
person to fear for his safety or the safety of a third person or
suffer other emotional distress.” N.J.S.A. 2C:12-10(b)
(emphasis added). In Gandhi, supra, we determined only that the
Legislature did not intend by the statute’s wording to impose a
requirement on the prosecution to prove that the defendant
purposefully or knowingly “cause[d] a reasonable victim to fear
bodily injury or death.” 201 N.J. at 187. Our task in Gandhi
was statutory interpretation and not constitutional
adjudication. Id. at 187-88.
30
himself of a fact and, armed with that knowledge, take measures

to avoid criminal liability. Defendant was guilty of a crime

under N.J.S.A. 2C:16-1(a)(3) even if he had no intent to commit

bias intimidation, so long as the victim reasonably believed

that defendant targeted him on account of his race or color. Of

course, a victim’s reasonable belief about whether he has been

subjected to bias may well depend on the victim’s personal

experiences, cultural or religious upbringing and heritage, and

reaction to language that is a flashpoint to persons of his

race, religion, or nationality. A tone-deaf defendant may

intend no bias in the use of crude or insensitive language, and

yet a victim may reasonably perceive animus. The defendant may

be wholly unaware of the victim’s perspective, due to a lack of

understanding of the emotional triggers to which a reasonable

person of that race, religion, or nationality would react.

Nothing in the history of the bias-intimidation statute suggests

that the Legislature intended to criminalize conduct through the

imposition of an amorphous code of civility or criminalize

speech that was not intended to intimidate on the basis of bias.

It bears repeating that no other bias-intimidation statute in

the nation imposes criminal liability based on the victim’s

reasonable perceptions.

Last, the State’s characterization of N.J.S.A. 2C:16-

1(a)(3) as a penalty-enhancement/target-selection statute does

31
not change the constitutional analysis. The pre-Apprendi hate-

crime law was described as a “sentence enhancer,” yet that

categorization did not alter the fact that the sentencing court,

not a jury, was determining an element of the offense in

violation of the defendant’s Sixth Amendment right to a jury

trial. Apprendi, supra, 530 U.S. at 490, 495, 120 S. Ct. at

2362-63, 2365, 147 L. Ed. 2d at 455, 458. How we label the

statute is not as important as how the statute operates and

whether it offends the Constitution.

N.J.S.A. 2C:16-1(a)(3) fails to set a standard that places

a reasonably intelligent person on notice when he is crossing a

proscribed line. That is so because guilt may depend on facts

beyond the knowledge of the defendant or not readily

ascertainable by him.

B.

Indeed, the facts of this case illustrate how subsection

(a)(3) exceeds its constitutional bounds. After Dorazo lured

Brodie into the storage cage in the Public Works garage and

locked the cage door, defendant remarked -- according to Brodie

-- “Oh, you see, you throw a banana in the cage and he goes

right in.” Although the jury concluded that defendant acted

with the purpose to harass Brodie, it rejected the State’s

theory that defendant acted with the purpose to intimidate or

target Brodie on account of his race or color. However, because

32
Brodie, an African-American victim, reasonably believed under

the circumstances that defendant’s words were racially motivated

-- even though the jury concluded they were not -- defendant was

convicted of bias intimidation.

Subsection (a)(3) required defendant to predict that the

reasonable African-American would consider defendant’s words as

constituting the motive for a crime, even though he had no such

motive. Persons who belong to specific ethnic, religious, or

racial groups that have been historically exposed to bigotry

will be particularly sensitive to language that is deemed

offensive, based on their communal and individual experiences.

But defendant did not possess the communal and individual

experiences of the reasonable victim in this case. Subsection

(a)(3) criminalizes defendant’s failure to apprehend the

reaction that his words would have on another. Here, subsection

(a)(3) penalizes, as a bias crime, coarse and insensitive

language that may have been uttered as part of a terrible prank.

VII.

A.

We disagree with the Appellate Division’s approach, which

reads into subsection (a)(3) a mens rea element that is absent

from the statute. The Legislature pointedly decided not to

include such an element in subsection (a)(3), which is evident

by the presence of mens rea elements in subsections (a)(1) and

33
(a)(2). We must read the statute as it is written. DiProspero

v. Penn, 183 N.J. 477, 492 (2005). The doctrine of

constitutional avoidance comes into play when a statute is

susceptible to two reasonable interpretations, one

constitutional and one not. State v. Johnson, 166 N.J. 523, 534

(2001). We then assume that the Legislature would want us to

construe the statute in a way that conforms to the Constitution.

Id. at 540-41. Here, there is no doubt about the meaning of

subsection (a)(3), however we parse the statutory language.

Although the parties strongly disagree on whether

subsection (a)(3) is constitutional, they concur that the

Appellate Division erred by rewriting the statute to impose a

mens rea element almost identical to the one in subsection

(a)(1). The Appellate Division, moreover, has performed not

minor judicial surgery to save a statutory provision, but a

judicial transplant. The Appellate Division has reconfigured

subsection (a)(3) to read as a mirror image of subsection

(a)(1). Rewriting the statute in that manner is not merely

beyond our authority but is redundant and therefore serves no

purpose. Moreover, a remand for a new trial on the basis of the

newly constructed statute raises serious double jeopardy

concerns because defendant was acquitted of the subsection

(a)(1) charge. We have no option but to strike the

34
constitutionally defective subsection (a)(3) of N.J.S.A. 2C:16-

1.

B.

In summary, we conclude that because N.J.S.A. 2C:16-1(a)(3)

fails to give adequate notice of conduct that it proscribes, the

statute is unconstitutionally vague and violates notions of due

process protected by the Fourteenth Amendment. Defendant was

convicted not based on what he was thinking but rather on his

failure to appreciate what the victim was thinking. In light of

our disposition, we need not address whether N.J.S.A. 2C:16-

1(a)(3) is also violative of the First Amendment.

It bears emphasizing that the twin pillars of the bias-

intimidation statute -- subsections (a)(1) and (a)(2) of

N.J.S.A. 2C:16-1 -- still stand. A defendant is prohibited from

acting with the purpose to commit bias intimidation or with

knowledge that his conduct constitutes bias intimidation. With

the striking of subsection (a)(3), New Jersey’s bias-

intimidation law now conforms to its original form, the

statute’s explanatory statement contained in the legislative

history, the laws of the rest of the nation, and the United

States Constitution.

VIII.

For the reasons expressed, we reverse the judgment of the

Appellate Division, which reconfigured N.J.S.A. 2C:16-1(a)(3) to

35
impose a mens rea requirement. We hold that N.J.S.A. 2C:16-

1(a)(3) is sufficiently vague that a person of reasonable

intelligence cannot discern the dividing line between criminal

and lawful behavior. A line that moves based on the victim’s

perceptions, however reasonable and perhaps mistaken, does not

give adequate notice of what is prohibited and therefore

violates the Due Process Clause of the Fourteenth Amendment. To

rewrite the statute, as did the Appellate Division, exceeds the

scope of our judicial authority. We therefore are constrained

to dismiss the subsection (a)(3) bias-intimidation convictions.

We also dismiss the misconduct-in-office conviction, which was

premised on a finding of bias intimidation under N.J.S.A. 2C:16-

1(a)(3).

We remand to the trial court for entry of judgment

consistent with this opinion.

CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE ABLIN’s opinion.
JUDGE CUFF (temporarily assigned) did not participate.

36
 SUPREME COURT OF NEW JERSEY

NO. A-32/33 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant
And Cross-Respondent,

v.

DAVID T. POMIANEK, JR.,

Defendant-Respondent
And Cross-Appellant.

DECIDED March 17, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE/
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) ------------------------- --------------------
TOTALS 6

1