A state Appellate Court panel on Tuesday partially overturned the conviction of a former township Public Works employee accused of calling a black co-worker who was locked in an equipment cage a "monkey."
In a 37-page, published decision, a three-judge panel threw out charges of bias intimidation and official misconduct against David T. Pomianek Jr. The judges upheld Pomianek's convictions on charges of harassment by communication and harassment by alarming conduct.
In essence, the appellate court ruled that the state failed to prove Pomianek's biased intent in making the comment.
The state's anti-bias law "would be unconstitutional if it 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," the court found.
(To read the court's decision, click on the PDF above.)
A jury convicted Pomianek, who is white, in December 2010 following a trial in state Superior Court in Camden.
A co-defendant, Michael Dorazo Jr.–who is also white –allegedly asked the victim, Steven Brodie Jr. to go into a cage to get equipment at the township's former Public Works garage on Erial Road in April 2007. Once Brodie was inside the cage, Dorazo locked the door, according to court testimony. Brodie was locked inside the cage for three to five minutes.
During this time, Pomianek allegedy said, "Throw a banana in a cage, he jumps right in."
Brodie testified he did not hear Pomianek refer to him as a "monkey" during the incident, but other Public Works employees who were present testified Pomianek did make that reference.
Pomianek was sentenced to 270 days in the county jail, to be served on weekends.
Dorazo pleaded guilty in 2011 to a disorderly persons offense in connection with the incident.
The appellate court remanded the bias intimidation and official misconduct charges against Pomiank for retrial.
Jason Laughlin, spokesman for the Camden County Prosecutor's Office, which prosecuted Pomianek, said Tuesday afternoon his office had no comment on the appellate decision.
"We'll determine how to proceed with the case after a review of the decision," Laughlin said in an email.
In February 2012, a U.S. District Court judge dismissed a civil-rights lawsuit filed by Brodie in connection with the incident, ruling the statute of limitations had passed by the time Brodie filed his complaint in April 2011.