BIAS CRIMESBIAS CRIMESBIAS CRIMESBIAS CRIMESBIAS CRIMES
I. EXTENDED TERM SENTENCING
A. Statutory Provision:N.J.S.A. 2C:44-3 provides that the court “shall,
upon application of the prosecuting attorney, sentence a
person who has been convicted of a crime, other than a
violation of N.J.S. 2C:12-1a., N.J.S. 2C:33-4, or a
violation of N.J.S. 2C:14-2 or 2C:14-3 if the grounds for
the application is purpose to intimidate because of
gender, to an extended term if it finds, by a
preponderance of the 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, religion, sexual orientation or ethnicity.”
B. Constitutionality
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), rev’g State v. Apprendi,
159 N.J. 7 (1999).
The Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.” Thus, N.J.S.A. 2C:44-3e is unconstitutional
because it authorizes an increase in the maximum prison
sentence based upon a trial judge’s finding, by a
preponderance of the evidence, that defendant acted with
the requisite purpose to intimidate because of race, color,
gender, handicap, religion, sexual orientation or
ethnicity.
II. HARASSMENT
A. Statutory Provision:N.J.S.A. 2C:33-4d elevates the petty disorderly
persons offense of harassment to a crime of the fourth
degree “if in committing the offense, the defendant
“acted with a purpose to intimidate an individual or
group of individuals because of race, color, religion,
gender, handicap, sexual orientation or ethnicity.”
B. Constitutionality:
The statute survived constitutional attack in State v.
Mortimer, 135 N.J. 517 (1994). In particular, the Court
held that the prosecution of defendant under the
harassment statute did not violate defendant’s right to
freedom of speech; nor did it impermissibly enhance
defendant’s punishment on basis of motive. In addition,
the Court held that the statute did not violate the Equal
Protection Clause and could be interpreted in such a way
that it was not unconstitutionally vague.III. ASSAULT
A. Statutory Provision:N.J.S.A. 2C:12-1e elevates the disorderly persons
offense of simple assault to a crime of the fourth degree if
the person acted with a purpose to intimidate an
individual or group of individuals because of race, color,
religion, gender, handicap, sexual orientation, or
ethnicity.”B. Severance:In State v. Crumb, 277 N.J. Super. 311 (App. Div.
1994), the Appellate Division affirmed a trial court’s
order severing a charge of assault under N.J.S.A. 2C:12-
1e from murder and weapons charges. In particular, the
Court explained that trying the bias count with the
murder count would compel the admission of
inflammatory and highly prejudicial evidence of
defendant’s racist beliefs.