Bias Intimidation (Part 1)

On January 27, 2020, the Atlantic County Superior Court Law Division decided the case of State v. Kyle Powell. Law Division opinions are considered non-binding, but persuasive. The same is true for unpublished Appellate Division opinions. The delay in the issuance of this Law Division opinion is attributable to the amount of time it takes before a Law Division case can be approved for publication. A published Law Division opinion may hold slightly more weight than an unpublished Appellate Division opinion, notwithstanding that the Appellate Division is a higher court that reviews Law Division decisions. This is because published Law Division opinions are rare and unpublished appellate division decisions are very common.

The principal issue in this case concerned the offense of Bias Intimidation. This offense is codified under N.J.S.A.  2C:16-1. The particular issue was whether the defendant’s social media posts threatening physical harm to the alleged victim’s biracial child could support an indictment.

Judge Waldman wrote for the Court in relevant part:  This matter comes before the court on Kyle Powell’s motion to dismiss counts one and four of the indictment. For the reasons set forth herein, the motion is denied. The State satisfied the burden to present “some” prima facie evidence for each of the elements of count one and count four of the indictment for bias intimidation.

Defendant misinterprets the language of N.J.S.A. 2C:16-1(a)(2). Under subsection (a)(2), bias intimidation is committed with knowledge “that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race.” N.J.S.A. 2C:16-1(a)(2). It matters only that the crime was committed targeting one of the requisite characteristics, with the purpose or knowledge that the intended victims would be intimidated.

Here, the language of the indictment for bias crime reads: Kyle M. Powell did commit, attempt to commit or threaten the immediate commission of an offense specified in N.J.S.A. 2C:12-3(a) terroristic threats; specifically, by sending racially biased threats via social media to A.P. that referenced her biracial daughter, N.P. and threatened a crime of violence to Ashley Parr and/or N.P.