State v. Pomianek

David Pomianek, Jr. (defendant) worked for the local department of public works. Pomianek and a coworker were engaged in horseplay and wrestling inside a storage cage enclosed with a chain-link fence. The coworker attempted to close the cage door with Pomianek inside, but Pomianek managed to get out. Shortly after that, Michael Dorazo, Jr. (defendant) told Steven Brodie, Jr. that their boss needed something out of the cage. Brodie went into the storage cage, and Dorazo shut the cage door, locking Brodie inside. While Brodie was locked in the storage cage, Pomianek said, “Oh, you see, you throw a banana in the cage and he goes right in.” Brodie was black, and Pomianek and Dorazo were white. Brodie believed this was a racial remark and was the same as saying Brodie was a monkey in a cage. Brodie was released by another employee approximately three to five minutes after he was first locked in. Previously, Brodie had seen Pomianek and Dorazo lightly hit another black employee with bungee cords while vacuuming up leaves. Brodie believed that action was intended to invoke images of slavery, like a black man working and getting whipped. Pomianek and Dorazo were charged with official misconduct and bias intimidation. The jury convicted Pomianek and Dorazo on both charges. The bias intimidation convictions were based on New Jersey Statutes Annotated (N.J.S.A.) 2C:16-1(a)(3), which prohibits intimidation if the victim reasonably perceives the intimidation to be based on race or other protected characteristics. The official misconduct convictions were based on the convictions for bias intimidation. Pomianek appealed, arguing that the statute is unconstitutionally vague.