                       RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-4667-11T1
                                              A-4787-11T1

STATE OF NEW JERSEY,

     Plaintiff-Respondent/
     Cross-Appellant,                APPROVED FOR PUBLICATION

                                        September 9, 2016
v.
                                       APPELLATE DIVISION
DHARUN RAVI,

     Defendant-Appellant/
     Cross-Respondent.


         Argued February 3, 2016 - Decided September 9, 2016

         Before Judges Fuentes, Kennedy and Gilson.

         On appeal from Superior Court of New Jersey,
         Law Division, Middlesex County, Indictment
         No. 11-04-00596.

         Steven D. Altman argued the cause for
         appellant/cross-respondent    (Benedict   and
         Altman,   and   Gibbons,   P.C.,   attorneys;
         Lawrence S. Lustberg and Amanda B. Protess,
         of counsel; Mr. Altman and Philip Nettl, on
         the briefs).

         Joie   D.   Piderit,  Assistant   Prosecutor,
         argued   the   cause  for   respondent/cross-
         appellant (Andrew C. Carey, Middlesex County
         Prosecutor,   attorney;   Susan  L.   Berkow,
         Assistant Prosecutor, of counsel and on the
         briefs).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.
       On April 20, 2011, a Middlesex County grand jury returned

Indictment      No.   11-04-00596      charging       defendant    Dharun      Ravi   as

follows: Count 1, fourth degree invasion of privacy, occurring

on September 19, 2010, with regard to T.C. and M.B., contrary to

N.J.S.A. 2C:14-9(a); Count 2,                third degree bias intimidation,

occurring on September 19, 2010, with regard to T.C. and M.B.,

contrary to N.J.S.A. 2C:14-9(a) and N.J.S.A. 2C:16-1(a)(1) and

(2), and with regard to T.C., contrary to N.J.S.A. 2C:14-9(a)

and N.J.S.A. 2C:16-1(a)(3)(b); Count 3, third degree invasion of

privacy, occurring on September 19, 2010, with regard to T.C.

and    M.B.,    contrary    to   N.J.S.A.      2C:14-9(c);        Count   4,     second

degree bias intimidation, occurring on September 19, 2010, with

regard to T.C. and M.B., contrary to N.J.S.A. 2C:14-9(c) and

N.J.S.A.       2C:16-1(a)(1)     and    (2),     and    with   regard       to    T.C.,

contrary to N.J.S.A. 2C:14-9(c) and N.J.S.A. 2C:16-1(a)(3)(b);

Count 5, fourth degree attempted invasion of privacy, occurring

on September 21, 2010, with regard to T.C. and M.B., contrary to

N.J.S.A. 2C:14-9(a) and N.J.S.A. 2C:5-1; Count 6, third degree

bias intimidation, occurring on September 21, 2010, with regard

to    T.C.   and   M.B.,   contrary     to     N.J.S.A.    2C:14-9(a),       N.J.S.A.

2C:5-1, and N.J.S.A. 2C:16-1(a)(1) and (2), and with regard to

T.C.,    contrary     to   N.J.S.A.     2C:14-9(a),       N.J.S.A.    2C:5-1,         and

N.J.S.A.       2C:16-1(a)(3)(b);       Count     7,    third   degree       attempted




                                         2                                     A-4667-11T1
invasion   of   privacy,      occurring      on    September     21,    2010,     with

regard to T.C. and M.B., contrary to N.J.S.A. 2C:14-9(c) and

N.J.S.A.   2C:5-1;      Count    8,   second       degree    bias    intimidation,

occurring on September 21, 2010, with regard to T.C. and M.B.,

contrary to N.J.S.A. 2C:14-9(c), N.J.S.A. 2C:5-1, and N.J.S.A.

2C:16-1(a)(1) and (2), and with regard to T.C., contrary to

N.J.S.A.   2C:14-9(c),        N.J.S.A.       2C:5-1,    and     N.J.S.A.       2C:16-

1(a)(3)(b);     Count   9,    fourth     degree      tampering       with    physical

evidence, occurring on September 22, 2010, contrary to N.J.S.A.

2C:28-6(1);     Count   10,     fourth    degree     tampering       with   physical

evidence, occurring on September 22, 2010, contrary to N.J.S.A.

2C:28-6(2); Count 11,1 third degree hindering apprehension or

prosecution,     occurring      on    September      22,     2010,     contrary      to

N.J.S.A.   2C:29-3(b)(1);         Count      12,     third     degree       hindering

apprehension or prosecution, occurring on September 23, 2010,

contrary   to    N.J.S.A.     2C:29-3(b)(3);         Count    13,     third     degree

hindering apprehension or prosecution, occurring on September

23, 2010, contrary to N.J.S.A. 2C:29-3(b)(4); Count 14, third

1
  Prompted by the trial judge's sua sponte comments, the State
moved to amend the indictment to relabel the hindering
apprehension charge -- on counts 11 and 13 under N.J.S.A. 2C:29-
3(b)(1) and (4) -- from a third degree offense to a fourth
degree offense.     Count 12 was amended to a second degree
offense. The trial judge granted the State's motion and denied
defendant's motion to dismiss all of the hindering counts as
inconsistent with the tampering counts.




                                         3                                    A-4667-11T1
degree    witness   tampering,    occurring      on    September      23,   2010,

contrary to N.J.S.A. 2C:28-5(a)(1) and/or (2); and Count 15,

fourth    degree    tampering    with       physical    evidence,     occurring

between September 19 and 23, 2010, contrary to N.J.S.A. 2C:28-

6(1).

    Both parties engaged in extensive pretrial motion practice.2

Defendant was eventually tried before a jury over a period of

sixteen   days.     On   March   16,    2012,   the    jury   found   defendant

guilty on all fifteen counts in the indictment, although not on

every charge reflected in each count.3            Defendant made a motion

for a new trial.     The motion was heard both in open court and at

sidebar, because part of defendant's arguments concerned M.B.

The court ultimately denied the motion for a new trial.

    On May 21, 2012, the trial judge sentenced defendant to an

aggregate three-year probationary term, conditioned upon serving

thirty days at the Middlesex County Adult Correctional Center.


2
  Given the media attention this case received, the State sought
to protect the privacy of M.B. by keeping all information
pertaining to his identity confidential.      The court granted
defendant's motion seeking supplemental discovery on M.B., but
denied a motion seeking to unseal records pertaining to his
identity. We denied defendant's interlocutory motion for leave
to appeal the trial court's decision.
3
  The verdict sheet required the jury to determine defendant's
guilt on thirty-five individual charges originally contained in
the fifteen counts of the indictment. The jury found defendant
guilty of twenty-one of the thirty-five charges.



                                        4                               A-4667-11T1
The   judge    also   ordered    defendant         to   complete      300   hours   of

community     service,    attend     counseling         on    cyber-bullying        and

alternate lifestyles, and pay an assessment of $10,000, which

would   be     allotted    to   a    state-licensed           or   state-chartered

community-based organization dedicated to providing assistance

to victims of bias crimes.

      Defendant appeals his convictions.                 The State has filed a

cross-appeal      challenging       the   legality       of     the    probationary

sentence imposed by the trial judge.                The State points out that

defendant was convicted of two counts of second degree bias

intimidation      and     one   count         of    second      degree      hindering

apprehension     in   violation     of    N.J.S.A.      2C:29-3(b)(3).          These

three convictions carry a presumption of incarceration pursuant

to N.J.S.A. 2C:44-1(d).         The State argues the trial judge failed

to follow the standard established by the Supreme Court in State

v. Evers, 175 N.J. 355, 389-95 (2003), in imposing a probationary

sentence on these offenses.

      We are satisfied that the outcome of this appeal comes down

to a careful application of our Supreme Court's analysis and

holding in State v. Pomianek, 221 N.J. 66, 69 (2015), which

declared      N.J.S.A.    2C:16-1(a)(3)        unconstitutional          because     it

allowed a jury "to convict a defendant even when bias did not

motivate the commission of the offense."                     Here, the jury found




                                          5                                  A-4667-11T1
defendant guilty on four counts directly predicated on N.J.S.A.

2C:16-1(a)(3), a now constitutionally defunct law.                     Indeed, the

prosecutor conceded at oral argument before this court that the

convictions under counts 2, 4, 6, and 8 are void as a matter of

law pursuant to        Pomianek.         Thus, these four charges against

defendant must be dismissed with prejudice.

       After carefully reviewing the record developed at trial, it

is clear that the evidence the State presented to prove the bias

intimidation charges under N.J.S.A. 2C:16-1(a)(3) permeated the

entire case against defendant, rendering any attempt to salvage

the convictions under the remaining charges futile.                      The State

used    evidence     revealing     the    victim's   reserved         demeanor   and

expressions     of   shame   and    humiliation      as    a   counterweight      to

defendant's cavalier indifference and unabashed insensitivity to

his roommate's right to privacy and dignity.                     The prosecutor

aggressively pressed this point to the jury in her eloquent

closing argument.

       It is unreasonable to expect a rational juror to remain

unaffected by this evidence.             In light of the Court's ruling in

Pomianek, admission of T.C.'s state of mind evidence constituted

an error "of such a nature to have been clearly capable of

producing an unjust result."              R. 2:10-2.      Finally, independent

of     this   overarching    error,        we   conclude       that    defendant’s




                                          6                                A-4667-11T1
conviction       on   Count    12,     charging      him     with    second    degree

hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(3),

must      be   vacated   and   the    charge       against   him    dismissed      with

prejudice as a matter of law for insufficiency of the evidence.

R. 3:18-1.

                                          I

       Defendant      graduated    from     high    school    in    June    2010   with

plans to attend Rutgers University in the fall.                        On August 6,

2010, he received an email from Rutgers directing him to the

housing application website where he learned that he had been

assigned a dorm room in Davidson Hall C on the Busch Campus.

The website also disclosed that T.C. would be his roommate and

provided his contact information.                   Defendant asked his friend

J.T.4 to suggest other Internet-related ways to find out more

information about T.C.

       This "conversation" between J.T. and defendant took place

in   an    instant-message5       format.      With      J.T.'s     help,    defendant


4
   We use initials for               witnesses      to   protect     their    privacy
interests. R. 1:38-3(c).
5
  Instant messaging (IM) is an on-line electronic text message
system "whereby participants are on-line at the same time and
communicate with each other in 'real time,' as if they were
talking on the phone."    Jorge Amieva, Legal Advice Given Over
the Internet and Intranet: How Does this Practice Affect the
Lawyer-Client Relationship?, 27 RUTGERS COMPUTER & TECH. L.J. 205,
218-19 (2001).



                                          7                                   A-4667-11T1
learned that T.C. had an interest in the violin and that someone

using T.C.'s email address had posted on a gay forum.                         This last

discovery prompted the following response from defendant: "FUCK

MY LIFE.     He's gay."

      Defendant's          friend,    S.X.,6     testified    that     defendant     had

"googled" T.C.'s name and found that T.C. had a "posting on a

gay forum and therefore he inferred that [T.C.] was homosexual."

On   cross-examination,           S.X.     testified   that    defendant       did   not

discuss      the     topic       of   homosexuality         during     high     school.

Defendant      also        did    not      say    "anything      about        disliking

homosexuals."         While in high school, S.X. and defendant were

members of the Ultimate Frisbee Club.                     Both S.X. and defendant

continued     this     activity       at    Rutgers    by    joining    the     Rutgers

Ultimate Frisbee Club.

      A.C.    was     also       defendant's       high     school     friend.        He

corroborated S.X.'s testimony concerning defendant's attitude or

disposition        about    homosexuality.          A.C.    stated     defendant     had

never said anything anti-gay, but acknowledged the subject was

not one they normally discussed.                 Defendant told A.C. in August

2010 that his roommate was gay, but A.C. characterized this as


6
  S.X. attended the same high school as defendant and both
graduated in 2010. They also enrolled at Rutgers' Busch Campus.
S.X. resided at Highland Hall. S.X. testified at trial as part
of the State's case in chief.



                                             8                                 A-4667-11T1
merely a part of a casual conversation.

      Defendant moved into his dorm room on August 28, 2010; his

high school classmate M.W. resided in the room directly across

the   hall.    Defendant   and   M.W.   became   friends   and   started

socializing and "hanging out together."          M.W. testified that

defendant "mention[ed] early on that he thought [T.C.] might be

gay[.]"    She characterized this as a very brief casual remark

that "didn't come again."        M.W. never thought that defendant

bore any animosity toward T.C. or otherwise resented him for

being gay; rather, she believed that T.C. and defendant merely

had different personalities.      She described T.C.'s demeanor as

quiet and reserved.    Thus, although she lived across from him,

M.W.'s interactions with T.C. were limited to saying "hi" in the

hallway.

                                   A

                   September 19, 2010 Incident

      M.W. testified that during an instant-message conversation

with defendant at 9:06 p.m. on Sunday, September 19, 2010, she

invited defendant to come to her room for a snack.           Defendant

agreed.    When the prosecutor then asked M.W. to tell the jury

what defendant told her when he came over to her room, M.W.

responded:

           I'm not sure if this happened right when he
           came into my room or maybe a little later



                                   9                             A-4667-11T1
         on, but he told me eventually that when he
         went into his room he wanted to -- I think
         his roommate asked him if he could have the
         room for a period of time.

    Defendant told M.W. that as he was about to leave the room,

T.C. made it clear that he wanted the room to himself, and that

defendant should not return "for a while."   M.W. testified that

defendant left her room briefly, but returned after he saw "a

guest that [T.C.] was having over."      Defendant described the

guest as "an older-looking man . . . I guess not a college-age

student-looking kind of guy . . . just like an older, shabbier-

looking guy."   M.W. testified that defendant left her room again

for a brief period of time.

         PROSECUTOR:   And what happened when he came
         back to your room at that time?

         A. By that time he had set up his computers
         so that -- or I guess it's his computer to
         basically auto accept if anyone wants to
         video chat with him, and he explained to me
         that he could see what was going on in his
         room if somebody else -- if he called his
         computer from someone else's computer.

         PROSECUTOR: That he would be     able   to   see
         what was going on in his room?

         A. Yes.

         PROSECUTOR:   Now,   you   said   the   words
         automatically accept. Did you know anything
         about that before he mentioned it to you?

         A. No.




                                10                          A-4667-11T1
             PROSECUTOR: And did you know that he could
             even do that?

             A. No.

    As M.W. sat by her computer, defendant opened the chat box,

selected his own name, and clicked on the video button.                           An

image   of   T.C.     and   his    guest   appeared   on   the   screen.        M.W.

testified that she saw the two men kissing.                 Although the room

was dark, she was able to see that they were standing and were

fully clothed.         M.W. testified that the video feed was open

"very, very brief[ly].            Like two seconds or less.       We closed it.

I'm not sure who closed it first, but we closed it."

    M.W. testified that she and defendant "were both just kind

of like really shocked. . . ."              According to M.W., their initial

reaction was to keep what they had seen to themselves and not

tell anyone what happened.            In M.W.'s words: "[I]t was just very

shocking."

             PROSECUTOR: Now, why did you talk about not
             telling anyone what had just happened?

             A. Just because, it was -- like it shouldn't
             have happened and we saw something that we
             didn't expect to see and . . . it just felt
             weird.[7]

    M.W. walked away from her computer and sat on her bed.                       She


7
  On cross-examination M.W. explained that "this was [her] first
experience seeing two males kissing[.]"




                                           11                              A-4667-11T1
testified that defendant continued using her computer to "AIM

[chat]" with a mutual friend.          M.W. also believed that defendant

went on Twitter.      A screenshot8 of defendant's Twitter captured

the following tweet: "Roommate asked for the room till midnight.

I went into [M.W.'s] room and turned on my webcam.                   I saw him

making out with a dude.       Yay."

       M.W. later engaged in an instant-message conversation with

her    boyfriend   from     high   school     who    was    attending   Stevens

Institute of Technology at the time.            A screenshot of their chat

showed that M.W. told A.C., "[T]he craziest thing . . . just

happened;" defendant then typed: "My roommate asked for the room

till midnight.     And I was like wtf.[9]           But whatever I said okay

and I left and I went into [M.W.'s] room and I turned on my

webcam from there.        And I saw him making out with some dude."

       C.C. was M.W.'s roommate.            She was in the dorm lounge at

around 9 p.m. when she saw T.C. enter the building, accompanied

by a man whom she had not seen before.              She described the man as

having an "Italian look about him."                 He had dark hair and a

goatee, and he looked older than the typical college student,

but    "not   obscenely    old."      In    response   to    the   prosecutor's


8
  A "screenshot" is a snapshot image of the information displayed
on a computer screen at a given point in time.
9
    "Wtf" stands for "what the fuck."



                                       12                               A-4667-11T1
questions, C.C. estimated that he appeared to be in his "late

20's, early 30's."        T.C. and the man walked in the direction of

the dorm rooms.          Thereafter, C.C. remained in the dorm lounge

for approximately twenty minutes before she decided to return to

her room.

       When C.C. walked into her room, she saw M.W. chatting on

her computer and defendant reading over her shoulder saying:

"No, no, tell them not to call my vid chat."              When she was later

questioned    by   law    enforcement    officers    about   this   particular

incident, C.C. explained that she inferred defendant did not

want other persons to access the chat and see "what was going

on."      Defendant informed C.C. of his sneaking suspicion that

T.C. was gay, but he told her that he "was not sure about it."

C.C. testified that defendant "wanted to find out for sure."                  He

used his video chat to see if T.C. and his guest "were like

friends     chilling"      or   else    "making     out   and   like    having

interactions of that sort."            However, C.C. also testified that

defendant "didn't have an issue with homosexuals and that in

fact he had a really good friend that [sic] was homosexual[;] he

had no issue with him at all."

       Defendant and C.C. left M.W.'s room and went to the dorm

lounge.     Defendant came up to his friend A.A. and told him he

had "a secret."     A.A. described defendant's demeanor at the time




                                        13                             A-4667-11T1
as "distraught."      According to A.A.'s testimony, defendant told

A.A. that his roommate, T.C., "had just invited a guy over and

asked for the room, for it to be his that night."                      Although he

did not know T.C., A.A. claimed that he "went along with saying

[']oh,    wow,   that's     pretty   crazy      and    scandalous[.']"        A.A.

claimed that he did not say these things because T.C. "invited

another   male   to   the    room[.]"         The   only   part   of   defendant's

revelation A.A. found "scandalous" was the description of the

"guy who was invited over as someone older[.]"

    C.C. told P.K., K.N., and R.M. about seeing T.C. "making

out" with a man in his dorm room through defendant's video chat.

Defendant, C.C., A.A., P.K., K.N., and R.M. all returned to

M.W.'s room to continue talking about T.C. and his guest.                     C.C.

testified that she, P.K., K.N., and R.M. were curious about what

was going on in T.C.'s dorm room and wanted to see the video.

C.C. in particular noted that T.C. "wasn't out to the public

about being gay or anything, so it was kind of like, [']I wonder

if it is true[,'] or, you know, just out of curiosity."

    M.W.    initiated       the   link   to    defendant's    computer.       C.C.

testified that "the video was only about a second long."                        She

gave the following description of what she saw:

            A. It came up first, but for a second there
            was a quick video and you saw two males
            leaning up against the bed making out.




                                         14                               A-4667-11T1
Q. And could you actually see that?

A. Yes.

Q. Okay. Could you tell who the two males
were?

A. I couldn't tell specifically, but through
logic I determined that one was [T.C.] and
one being the other male that accompanied
him into the building.

Q. When you say logic, why do you say that?

A. Because I know that [defendant] had a
desktop, so that would be where his video
camera would have been stationed, and the
other -- the only other person with access
to the room would be [T.C.] and I knew that
he had asked for the room during this
period.

Q. How did you know that [defendant] had a
desktop? . . . [W]hat do you mean by
[desktop]? . . . .

A. Like a monitor just like that and like a
modem on the floor, on the side.

Q. How did you know that?

A. With [defendant], through walking by the
room and also I believe it came up in
conversation once or twice.

Q. Conversation with [defendant]?

A. Or with [M.W.], with someone that knew.

Q. And when you saw the image on the screen
did it appear to be a picture or a live
image?

A. A live image.




                     15                        A-4667-11T1
            Q. And when you say [there] were the two
            males that were kissing, . . . could you
            tell whether they had clothes on or no
            clothes on?

            A. I could only really see one of them and
            his back was to the camera and he appeared
            to be shirtless.

            Q. And what happened after that, after you
            saw that image?

            A. Someone pressed none tweeted abruptly,
            and we said okay, that happened and that was
            the end of that (sic).

            [(Emphasis added).]

    M.W., K.N., R.M., P.K., and "maybe" defendant were in the

room with C.C., and using M.W.'s laptop computer to view the

foregoing surreptitious images.        C.C. later claimed that M.W.

was the one who "abruptly" stopped the transmission.       When the

prosecutor asked C.C. if anyone said anything to cause M.W. to

shut it down, she answered, "I can't recall to be honest."

    P.K. testified that it was M.W. who encouraged them to

watch the live video transmission.        P.K.'s description of the

images she viewed corroborated C.C.'s account in all but one

material detail.    According to P.K., the video transmission was

terminated after about five seconds.       The female students told

defendant what they had seen when he returned to the room.      P.K.

testified that defendant was not particularly bothered by what

he heard.    In P.K.'s words: "He was just okay."   He told them he




                                  16                        A-4667-11T1
did not have a problem with T.C. being gay.                     P.K. returned to

the dorm lounge.          She later saw T.C. come out of his room with

his guest.         She described the man as being approximately thirty

years    old,      and   thus   viewed    him    as   "very    old."     Defendant

returned to M.W.'s room around midnight and fell asleep in her

chair until about 2:00 a.m., at which point he returned to his

own room.

                                           B

                          September 21, 2010 Incident

       At approximately 5:30 p.m. on Tuesday, September 21, 2010,

defendant texted M.W. the following message: "Its (sic) going

down    tonight      also."      M.W.    inferred     from    this   cryptic    text

message that T.C. had again asked defendant to have the dorm

room for himself. M.W. responded: "wtf again (sic), I'm worried

about you lol[.]"10           Defendant replied, "I'm gonna [sic] be at

practice anyway."

       A.Ag. met defendant shortly after she moved into Davidson

Hall    C;   they    soon     became    friends.      She     received   the   tweet

defendant sent on Sunday night (September 19, 2010) saying that

he    saw    his    roommate    "making    out     with   a   dude."     When    the

prosecutor asked her to explain what the tweet meant to her, she

responded: "It didn't faze me . . . as much as it should have.

10
     "Lol" stands for "laughing out loud."



                                          17                               A-4667-11T1
I really didn't think much of it.             I don't even remember at the

time if I knew of [T.C.'s] sexual orientation, so it just really

didn't faze me."        A.Ag. received another tweet from defendant on

Tuesday September 21, 2010, that said: "Anyone with iChat I dare

you to video chat me between the hours of 9:30 and 12.                        Yes,

it's happening again."         (Emphasis added).

      Later   on   that      Tuesday   evening,     defendant    explained    the

auto-accept feature on his computer to A.Ag. and other friends,

encouraging    them     to    video    chat   him   between     9:30   p.m.    and

midnight.     Defendant went to A.Ag.'s room after dinner and used

her computer to video chat with his computer.                   A.Ag. testified

that she saw an image appear on her screen, which showed T.C.'s

side of the dorm room and T.C.'s bed.               A.Ag. and defendant left

the dorm together at approximately 8:30 p.m.; defendant went to

practice with the Ultimate Frisbee Club.

      Sometime after 10 p.m., defendant went to A.Ag.'s dorm room

to show her the new cleats he had purchased.                      According to

A.Ag., defendant stayed in her room and helped her with her

calculus homework for the next couple of hours.                 A.Ag. testified

that defendant rarely spoke about T.C., and that he never made

any derogatory remarks during the few occasions on which T.C.

did   come    up   in    conversation.        A.Ag.    also     testified     that

defendant did not seem in any way upset that T.C. was gay.                    She




                                        18                              A-4667-11T1
described     defendant    as   "absurd"      and     being    his    "crazy   goofy

self."

      L.O.,    another    friend    defendant         made    after     arriving   at

Rutgers, saw defendant in the dorm lounge around 6:30 p.m. on

the evening of Tuesday, September 21, 2010.                   Defendant told L.O.

that the events from Sunday night were happening again, and he

asked if he could use L.O.'s computer to remotely activate the

webcam on his own computer.               The two of them went to L.O.'s

room.       Defendant     initiated      an   iChat    from     L.O.'s    computer,

thereby activating the webcam on his own computer in his dorm

room.      When an image of defendant's room appeared on the screen,

defendant explained the auto-accept feature to L.O.                       Defendant

then went to his room and told L.O. to check the angle on the

webcam.      L.O. testified that he saw defendant walk around his

room and move his computer until T.C.'s bed came squarely into

view.      Defendant then returned to L.O.'s room, grabbed his bag,

and left.

      L.O. also left to attend an evening class, but returned to

his room around 9:30 p.m.           Remembering what defendant said was

happening, he clicked on defendant's video chat "thinking that I

would maybe get a glimpse."           An error message came up, however,

and   he    could   not   connect   to    defendant's         webcam.      L.O.    saw

defendant in the lounge around 11:00 p.m. and told him that the




                                         19                                 A-4667-11T1
video    did    not     work.        Defendant        replied:           "Yeah,    I've    been

getting that from a lot of people."                        L.O.          testified         that

defendant had never made any disparaging comments or homophobic

remarks about T.C.              In fact, L.O. claimed defendant described

T.C. as "a nice guy."                 However, L.O. recalled that defendant

genuinely seemed shocked when he told him about what he had seen

T.C. doing on the previous Sunday evening.

       A.A. also saw defendant on Tuesday evening, September 21,

2010.    Defendant told A.A. that T.C. had asked for the room that

night    and        commented:      "[T]hey're        at     it    again."         Defendant

wondered where he would sleep if T.C.'s guest was going to be

there the entire night; he was also not sure he wanted to go

back to the room anyway.

       S.X. was also a member of the Rutgers Ultimate Frisbee

Club.      He       testified      that   defendant        told    him     about    what     had

happened       on    Sunday     while     they    were       at    the    Tuesday      evening

practice.       Defendant told S.X. that T.C. had asked for the room

again    that       night.         S.X.   testified        that     defendant       was    very

knowledgeable about computers.                   He liked to brag about what he

could do to people using his computer.                            That Tuesday, he told

team    members       that    he    had   set    up    his    webcam       to   view    T.C.'s

expected homosexual encounter, and he explained how they could

watch the interaction from their own computers.




                                             20                                        A-4667-11T1
       G.I. was the captain of the Rutgers Ultimate Frisbee Club.

Defendant had spoken to him about T.C. on multiple occasions

specifically mentioning that he suspected that T.C. might be

gay.    Based on defendant's demeanor, G.I. believed defendant was

"uncomfortable with the situation."               G.I. made clear, however,

that   defendant      never   said    anything    disparaging       or   malicious

about T.C.

       After    the    Frisbee   Club        completed     its    Tuesday      night

practice, defendant, G.I., and a few other teammates went to the

cafeteria.      While they were waiting for their food, defendant

told them that he had set up a webcam to capture images of his

roommate and his roommate's male guest.                   Defendant told them

that he had done it before and that he intended to do it again

that evening.

       M.H., a high school classmate of defendant, was attending

Cornell University in the fall of 2010.                 She kept in touch with

defendant through Facebook, iChat, Twitter, and text messaging.

She had seen defendant's tweets from Sunday, September 19, 2010,

and Tuesday, September 21, 2010; M.H. and defendant discussed

the content of these electronic messages in a series of texts

starting   on    September    21,     2010.      M.H.    gave    law   enforcement

investigators      permission    to    photograph        the    messages    on    her

phone; she also identified and authenticated them at trial.




                                        21                                  A-4667-11T1
       On September 21, 2010, at 1:46 p.m., M.H. and defendant

engaged in the following electronic exchange via text messages.

We     quote    the   text   messages    verbatim,   without   noting     any

grammatical deviations or spelling errors:

               M.H.: hahahahha your gay roomie that. . .
               did you really see him make out with some
               guy lmao[11]

               DEFENDANT: Yeahh omg[12] [M.W.] saw it too.
               He was older and creepy and def from the
               internet

       The following exchange then took place:

               M.H.: that's so nastyyy ew watch out            he
               might come for you when you're sleeping!

               hahaha jk

               DEFENDANT: Omg everyone keeps telling           me
               that. I haven't seen him since then

               M.H.: hahaha good luck with thatt

               DEFENDANT: He just texted me asking when I
               was coming home omg.

               M.H.: maybe his gay friend is in your Ed

               bed*

               DEFENDANT: I set my computer to alert me if
               anyone is in it when I'm not there LOL

               M.H.: really?? how lmao that's so cool




11
     "Lmao" stands for "laughing my ass off."
12
     "Omg" stands for "oh my God."



                                        22                          A-4667-11T1
            DEFENDANT: My webcam checks my bed hahaha.
            I got so creeped out after sunday

            M.H.: hahaha that's so crazy

            DEFENDANT: Yeah keep the gays away

            M.H.: I saw a lesbian Asian couple today

            but they were like nerdy fobby asian and it
            was gross

            DEFENDANT: Ewwww. When we were in ny we saw
            two guys making out on a stoop

            M.H.: NY that's pretty normal though hahha
            one of my friends is this gay Asian guy who
            has his ear pierced lol

            I mean bellybutton pierced*

       Later, at 6:41 p.m. on September 21, 2010, defendant texted

M.H. the following: "Do it forreal I have it pointed at his bed.

And the monitor is off so he can't see you."                  When M.H. asked

how defendant could accept the video chat, he replied:                   "It's

set to automatically accept.             I just tested it and it works

lol[.]"    At 7:03 p.m. defendant texted: "Be careful it could get

nasty . . . Mad people are gonna do it[.]"                At 8:41 p.m. he

texted:    "Omfg[13] people are having a viewing party with a bottle

of    bacardi   and   beer   in   this    kids   room   for    my   roommate."

(Emphasis added).       M.H. testified that she did not attempt to

video chat defendant on Tuesday.             On September 22, 2010, she


13
     "Omfg" stands for "Oh my fucking God."



                                     23                               A-4667-11T1
texted defendant, "I didn't do it.                  How was it last night?

Hahaha."     Defendant replied, "It got messed up and didn't work

LOL."

                                         C

                                        M.B.

      M.B. was the man who visited T.C. on September 19 and 21,

2010.   He met T.C. towards the end of August 2010 on a social

networking site for gay men.             He was thirty years old at the

time.   M.B. and T.C. communicated for a couple of weeks through

email, instant messaging, and texting before arranging to meet

at T.C.'s dorm room.          They met for the first time on Thursday,

September 16, 2010.        At first, M.B. called T.C. to meet him on

the street because M.B. had difficulty finding Davidson Hall.

T.C. took him to his room around 10:00 p.m., and M.B. stayed

until 2:00 a.m.

      M.B.   next    met   T.C.    on   Sunday,    September    19,   2010.       He

arrived around 9:30 p.m. and T.C. again took him to his room.

Defendant was in the room when T.C. and M.B. arrived.                          M.B.

testified that he said "a quick hi" to defendant; "I really

wasn't engaging him in any conversation or anything."                   T.C. did

not   make   any    attempt   to   introduce      M.B.   to   defendant.       M.B.

testified that defendant left the room but "came back rather

quickly."     On cross-examination, M.B. stated that T.C. locked




                                         24                                A-4667-11T1
the door as soon as defendant left the room.                 Defendant knocked

on   the   door    "five   to   ten    seconds"    later,   requiring   T.C.   to

unlock and open the door.             Defendant went to his desk, shuffled

"some papers" around, and walked out.              He did not return.

      M.B. initially testified that he was in T.C.'s room for

about      two    hours.        However,      he   later    acknowledged    that

surveillance cameras in the dorm hallway showed he was there

only for approximately forty-five minutes.                   M.B. had "sexual

relations" with T.C.        In response to defense counsel's questions

on cross-examination, M.B. stated that both T.C. and he were

naked, and that the "sexual relations" involved "sexual contact

and sexual penetration."           Defense counsel asked M.B. if he had

"any other recollection about anything that might have occurred

on that night before [he] left[.]"                  M.B. gave the following

response:

             Well, . . . while we were intimate together
             on the bed[,] I had just glanced over my
             shoulder and I had noticed that there was a
             webcam that was faced towards the direction
             of the bed[,] and I just thought it was kind
             of strange, you know, just being in a
             compromising . . . position [and] seeing a
             camera lens.   I guess it just stuck out to
             me that . . . if you were sitting at a desk
             using that computer, that camera wouldn't be
             facing that direction.    It would be facing
             towards the person using the computer.

M.B. clarified that he did not make this observation when he

first came into the room.



                                         25                             A-4667-11T1
    When M.B. left the dorm building that night, he saw a group

of five people standing in a corner and looking at him.                             He

described     the       experience    as      "unsettling."             He      "felt

uncomfortable because they were staring at me and they were

looking at me in an odd way."                He saw T.C. again on Tuesday,

September 21, 2010.          This time, there was no one else in the

dorm room.     They again engaged in "sexual relations."                      In the

course of cross-examination, M.B. also confirmed that he did not

see "anything pointed out to [him]."                  When asked to clarify,

M.B. stated, "[F]rom the experience on the 19th . . . I didn't

see the webcam on top of the computer."                M.B. testified that he

did not know what had happened to T.C. until he read about it in

the newspaper.          This was also the time that he learned T.C.'s

last name.

                                        D

                                     T.C.

    A forensic examination of T.C.'s computer performed by Gary

Charydczak,        an    Investigator        with     the     Middlesex       County

Prosecutor's       Office,   revealed    that       T.C.    visited   defendant's

Twitter account fifty-nine times between September 13, 2010, and

September    22,    2010.     T.C.   captured       several    screen     shots     of

defendant's tweets, including defendant's September 19, 2010,

tweet that stated defendant had seen T.C. "making out with a




                                        26                                   A-4667-11T1
dude," and defendant's September 21, 2010, tweet daring "people

to video chat [him] between 9:30 [p.m.] and 12 [a.m.]."

    At 3:55 a.m. on September 21, 2010, T.C. submitted a room

change     application     to   Rutgers'     Residence         Life     Assignments

Office.     In the section of the application requiring to state

the reason why he wanted a single room, T.C. wrote: "roommate

used webcam to spy on me/want a single room."                       Raahi Grover, a

residence    assistant     at   Davidson     Hall      C,    testified      that    he

interacted with defendant at social gatherings and spoke to him

in the hallway and in the dorm lounge.

    On the other hand, Grover knew T.C. "strictly by face."

The only time he spoke to him was at 11 p.m. on September 21,

2010.     Grover testified that he was alone in his dorm room when

T.C. knocked on the door.              Grover further testified that he

could     tell   from    the    tone   of   T.C.'s          voice    that   he     was

uncomfortable.      He thus asked T.C. to come inside and closed the

door to allow him to speak freely in private.                   T.C. told Grover

about an incident involving defendant.              Based on T.C.'s account

of what had allegedly occurred, Grover decided that the matter

required the involvement of senior management.

    Grover       asked   T.C.   to   send   him   an    email       describing     the

situation.       Grover told T.C. that he would use the information

disclosed in the email to file an incident report in Rutgers'




                                       27                                   A-4667-11T1
internal    information     sharing   system     called       "Symplicity."         As

Grover     explained,      "That   report       is     accessible      to     Senior

Management who will take actions based on what the report has in

it."     Grover also extended T.C. an invitation to stay on an

extra bed in his room if T.C. felt uncomfortable returning to

his own dorm room.         T.C. declined.        Surveillance footage shows

that T.C. was in Grover's room for approximately five minutes.

       Grover characterized the matter as a "roommate conflict" in

the Symplicity incident report he filed.                    Under the heading of

"incident description," Grover wrote:                 "A resident in Davidson

C,   [T.C.],   approached     me   today      (9/21/2010)       at   11:00     PM   to

discuss an issue on a violation of privacy against his roommate,

Dharun Ravi.        [T.C.] has took [sic] the liberty to write an

email describing the incident."               Grover then quoted the email

sent to him by T.C. in full.                 The trial court redacted this

document to delete some of the hearsay information reflected in

T.C.'s email.

       The final document the jury received in evidence contains

the following statement written by T.C.: "I feel my privacy has

been violated and I am extremely uncomfortable sharing a room

with someone who would act in this . . . manner."                      The report

continued    with   this    statement    written       by    Grover:   "[T.C.]      is

quite upset and feels uncomfortable.                 [T.C.] prefers a roommate




                                        28                                   A-4667-11T1
switch ASAP and would like to see some sort of punishment for

Dharun Ravi."

      On the afternoon of Wednesday, September 22, 2010, Grover

notified defendant regarding T.C.'s allegations that defendant

had violated his privacy.       Based on the information provided by

T.C., a formal incident report had been filed and defendant was

informed that he should expect to hear from senior management

about   the    matter.     After   speaking     with   Grover,      defendant

accessed his Twitter account and deleted the September 19 and

21,   2010    postings   concerning   T.C.      Defendant    then   tweeted:

"Roommate asked for room again.            It's happening again.       People

with iChat, don't you dare video chat me from 9:30 to 12;" and

"Everyone ignore that last tweet.          Stupid drafts."

      At 8:46 p.m., defendant sent T.C. the following text:

             I want to explain what happened.      Sunday
             night when you requested to have someone
             over I didn't realize you wanted the room in
             private. I went to [M.W.'s] room and I was
             showing her how I set up my computer so I
             can access it from anywhere. I turned on my
             camera and saw you in the corner of the
             screen and I immediately closed it. I felt
             uncomfortable and guilty of what happened.
             Obviously I told people what occurred so
             they could give me advice.    Then [T]uesday
             when you requested the room again I wanted
             to make sure what happened [S]unday wouldn't
             happen again.   I went on twitter to let my
             friends know you wanted the room again and
             not to video chat me from 930 to 12.    Just
             in case, I turned my camera away and put my
             computer to sleep so even if anyone tried it



                                      29                             A-4667-11T1
           wouldn't work. I wanted to make amends for
           [S]unday night.    I'm sorry if you heard
           something distorted and disturbing but I
           assure you all my actions were good natured.

           I've known you were gay and I have no
           problem with it. In fact one of my closest
           friends is gay and he and I have a very open
           relationship. I just suspected you were shy
           about it which is why I never broached the
           topic.   I don't want your freshman year to
           be     ruined    because    of     a   petty
           misunderstanding, it's adding to my guilt.
           You have the right to move if you wish but I
           don't want you to feel pressured to without
           fully understanding the situation.

    On September 22, 2010, shortly after defendant sent this

text message, T.C. wrote on his Facebook page: "I'm going to

jump off the GW Bridge.       Sorry."

                                     E

                             The Investigation

    At    9:30   p.m.   on   Wednesday,     September    22,   2010,    Rutgers

Police Officer Christopher Kowalczyk was dispatched to conduct a

welfare check on T.C.        Kowalczyk first went to T.C.'s dorm room,

where he found defendant there alone.            Defendant said his last

contact with T.C. had been at about 4:35 p.m. that day, when

T.C. returned from class, dropped off his backpack, and left

without saying where he was going.              Defendant told Kowalczyk

that T.C. had a guest sleep over on Sunday night and described

the man as slightly overweight with a scruffy beard.                 Defendant

thought   T.C.    and   the    man   were     involved    in    an     intimate



                                     30                                A-4667-11T1
relationship.

       Around   1   a.m.   on    Thursday,     September    24,   2010,    Rutgers

administrators      learned      that   T.C.    had   committed        suicide    by

jumping off of the George Washington Bridge.                At approximately 9

a.m. that day, the Assistant Director of the Busch Campus, a

representative      of     the   Psychology      Department,       and    Resident

Assistant Grover went to defendant's room to inform him of what

had occurred.       They asked defendant to contact his parents and

go home for a few days.

       Later that afternoon, defendant texted M.H.: "My roommate

committed suicide."        He told her that he would stay home "until

it blows over.       The cops came to my room last night looking for

him.     And a bunch of counselors told me this morning. . . .

They're being mad helpful."             When M.H. asked defendant if he

knew what caused T.C. to take his own life, defendant responded:

"No idea.       He was quiet all the time and had no friends so I

guess    it     makes    sense."        M.H.     appeared      surprised      about

defendant's statement: "I thought he had friends.                      Didn't you

say there was like a viewing party once and didn't he have

another guy or something?"          (Emphasis added).        Defendant quickly

attempted to disavow his earlier tweet: "No that was a joke.                        I

told    the   counselors    everything       that   happened      on   Sunday    and

Tuesday."     Defendant then asked M.H. to delete something S.X. had




                                        31                                 A-4667-11T1
posted that was negative about T.C.; M.H. agreed to do so.

    Douglas Rager, who at the time was a detective with the

Rutgers     University    Police     Department,       testified       that    on

Thursday, September 23, 2010, he seized evidence from the dorm

room shared by T.C. and defendant.              He and Investigator Michael

Daniewicz from the Middlesex County Prosecutor's Office picked

M.W. up later that afternoon and took her to the Rutgers Police

Department for questioning.         M.W. testified that when university

police officers picked her up in an unmarked car, she became

nervous and told A.C. through text message that he should call

the police if he did not hear from her by 10 p.m. that night.

M.W. did not answer A.C.'s subsequent calls.               When A.C. called

defendant to find out what was happening, defendant told A.C.

that he would try to contact her directly.

    Defendant phoned M.W. while she was in a conference room at

police headquarters.      M.W. told him that she could not speak to

him and hung up.      Defendant then texted M.W. and the following

exchange    ensued.      Once    again,    we   are   quoting    the   exchange

verbatim,    deliberately       leaving    misspellings    and     grammatical

deviations unaltered:

            [DEFENDANT]: Did you tell them [police] we
            did it on purpose?

            [M.W.]:   Yeah. . . well that we didn't know
            what we were gonna see




                                      32                                A-4667-11T1
Where is [T.C.]. . .

[DEFENDANT]: Because I said we were just
messing around with the camera. He told me
he wanted to have a friend over and I didn't
realize they wanted to be all private.

[M.W.]:   Omg dharun why didn't u talk to me
first i told them everything

[DEFENDANT]:   Like what

[M.W.]: Like literally everything bcu they
asked me to tell them exactly what happened

[DEFENDANT]:   What did you tell them when
they asked why we turned it on

[M.W.]:   I said we just wanted to see what
was going on

[DEFENDANT]:   And   you    said   we   closed   it
immediately?

[M.W.]: Yes

[DEFENDANT]:   Okay.

[M.W.]: I'm scared . . . wtf is going on. . .

[DEFENDANT]:   Nothing I'm at home.

What did they tell you?

[M.W.]: What so why are [they] asking all
these questions . . . and they told me
nothing!

[DEFENDANT]:   Ok don't worry you're not in
trouble.

Did you say anything about Tuesday because I
turned off my computer that day

[M.W.]: Aiya still




                       33                             A-4667-11T1
            [Tuesday]? Idk[14] whT happened that day

            [DEFENDANT]: Nothing happened

            [M.W.]: Ok LOL

            [DEFENDANT]: But rumors got started

            [M.W.]: Wtf? Like what. . . and did [T.C.]
            find out is that why the police are asking
            question/s?

            [DEFENDANT]:   He    thought          people     were
            watching him tuesday.

       Investigator Daniewicz testified that about halfway through

M.W.'s interview, he excused himself from the room.                 When he

returned,     he   asked   M.W.   when    she   last   had   contact    with

defendant.    She replied that she had spoken to him a few minutes

earlier.     With M.W.'s consent, Daniewicz made a hard copy of her

text exchange with defendant.

       After questioning M.W., Rager and Daniewicz drove to the

Ravi    residence    where   they   met    with     defendant's     parents.

Defendant agreed to accompany the law enforcement agents back to

the Rutgers Police headquarters for further questioning.               After

waiving his Miranda15 rights, defendant gave the officers his

cellphone and agreed to answer all of their questions.                    The

videotape of defendant's interrogation was played for the jury.


14
  "Idk" stands for "I don't know."
15
   Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602,
1612, 16 L. Ed. 2d 694, 707 (1966).



                                    34                              A-4667-11T1
      In his statement, defendant downplayed the exuberance he

displayed     in   the   tweets    and   texts     he   sent   and   omitted     the

homophobic statements he candidly included in these electronic

messages.      He emphasized that M.B.'s age and appearance was

outside the norm of a typical college student.                  "He didn't seem

like a student here[;] he seem[ed] kind of older and he look[ed]

kind of weird.      Honestly, . . . I didn't know who he was, [and I

was] a little worried about it."

      For the first time, defendant stated that he was concerned

for "his valuables."           He wanted to check to make sure T.C. and

his   guest    "were     not   going     through    his   stuff."      Thus,      he

suggested to M.W. to setup the means to watch clandestinely what

was taking place behind the closed door of the dorm room.                         He

explained that he had had his computer set up to automatically

accept video chats for some time.                Without reciting at length

the   forty-four       page    interrogation       document,    we   can    safely

summarize its content as a poorly executed attempt by defendant

to sanitize his motives for using his knowledge of computers to

surreptitiously        observe    T.C.     and     M.B.   engaged     in    sexual

relations.

      Defendant told the investigators that he was not aware that

T.C. was reading his tweets.             He suspected T.C. may have heard

something, however, because he reported the matter to Resident




                                         35                                A-4667-11T1
Assistant Grover.           Defendant claimed he deleted the September 19

and 21, 2010, tweets after Grover spoke to him on Wednesday

"because otherwise they can be interpreted like ambiguously."

He tweeted "stupid drafts" because he accidently sent "a draft"

of the September 21, 2010 tweet when he was deleting the other

two.

       Timothy      Edward    Hayes,      a    security    analyst      with    Rutgers'

Information         Technology     Department,         testified   to    explain      how

Rutgers     students     connect     to       the   Internet.      He    examined     the

activity that took place on defendant's computer on September

21, 2010.      Hayes also identified two iChat sessions — one with

L.O.'s computer at 6:58 p.m. and one with A.A.'s computer at

7:44 p.m.      Looking at activity between the hours of 7 p.m. and

midnight, there was a "glaringly obvious hole in the middle"

where there was no data at all from defendant's computer.                             The

only   explanation          for   this    is    that    defendant's     computer      was

turned off from about 9:25 p.m. until 11:19 p.m.

       In    his     defense,      defendant         presented     seven       character

witnesses.          These    witnesses        consistently      testified      to   never

having      heard    defendant     make       any   derogatory     statements       about

homosexuals.




                                               36                               A-4667-11T1
                                  II

    Against this factual record, defendant raises the following

arguments:

         POINT I

         THE   TRIAL    COURT     SHOULD   HAVE           GRANTED
         DEFENDANT'S   MOTIONS    FOR ACQUITTAL.          (raised
         below)

             A. COUNT 1, Invasion of Privacy.

             B. COUNT 3, Invasion of Privacy.

             C. COUNT 5, Attempted Invasion of
             Privacy.

             D. COUNT 7, Attempted Invasion of
             Privacy.

             E. COUNTS 2,        4,    6,   and    8,    Bias
             Intimidation.

             F.     COUNT             12,         Hindering
             Apprehension.

         POINT II

         THE TRIAL COURT'S FINAL CHARGE TO THE JURY
         DEPRIVED DEFENDANT OF A FAIR TRIAL. (not
         raised below)

         A. The court gave no limiting instruction of
         T.C.'s suicide.

         B. The court failed to properly emphasize
         the State's burden of proof.

         C. The separate     offenses        were       improperly
         blended together.




                                  37                                 A-4667-11T1
POINT III

THE BIAS INTIMIDATION CONVICTIONS THAT ARE
NOT BASED ON PURPOSEFUL CONDUCT MUST BE
VACATED (counts 2 and 4). (not raised below)

POINT IV

THE TRIAL COURT'S CHARGE ON COUNTS 1 AND 5
WAS ERRONEOUS AND PREJUDICIAL. (not raised
below)

POINT V

DEFENDANT SHOULD HAVE BEEN PERMITTED TO
IMPEACH   M.B.'S   CREDIBILITY    ON CROSS-
EXAMINATION WITH HIS PRIOR CONVICTIONS AND
FALSE CERTIFICATION. (raised below)

POINT VI

DEFENDANT WAS DENIED HIS RIGHT TO A PUBLIC
TRIAL WHEN THE TRIAL COURT REFUSED TO ALLOW
ARGUMENT ON M.B.'S PRIOR CONVICTIONS IN OPEN
COURT. (raised below)

POINT VII

THE ADMISSION OF RAAHI GROVER'S INCIDENT
REPORT, WITH T.C.'S REDACTED EMAIL, VIOLATED
DEFENDANT'S RIGHT TO CONFRONTATION. (raised
below)

POINT VIII

DEFENDANT WAS PREJUDICED BY THE DENIAL OF
PRE-TRIAL DISCOVERY. (raised below)

    A. Complete copies of the forensic
    images of T.C.'s computer.

    B. All reports from the        Port
    Authority Police Department.

    C. Copies of evidence item #11.




                     38                        A-4667-11T1
                    D.   Copies         of         three        specific
                    documents.

            POINT IX

            THE INDICTMENT SHOULD HAVE BEEN DISMISSED
            FOR AN INADEQUATE GRAND JURY VOID [SIC] DIRE
            REGARDING  PRETRIAL   PUBLICITY.     (raised
            below)

    The bulk of our analysis will be dedicated to determining

whether the evidence of T.C.'s state of mind irreparably tainted

the jury's verdict as a whole.                Defendant argues that all of his

convictions      must     be     vacated      because       they     were     irreparably

tainted    by    highly        prejudicial         evidence       admitted     solely      to

support    the    charges      under    N.J.S.A.       2C:16-1(a)(3).              Defendant

points    out    that    to    meet    its    burden       of    proof     under    N.J.S.A.

2C:16-1(a)(3), the State presented evidence from a variety of

sources that revealed the intimidation and humiliation T.C. felt

as a result of defendant's conduct.                         Defendant asserts that

"there is simply no way for this Court to conclude that such

evidence did not have the clear capacity to taint all of the

guilty verdicts in this case."

    The     State       argues    that       the    Supreme       Court's     holding      in

Pomianek does not disturb defendant's conviction on any count

other than those directly predicated on N.J.S.A. 2C:16-1(a)(3)

as a basis for criminal culpability.                       According to the State,

defendant's convictions on the tampering and hindering counts,




                                             39                                     A-4667-11T1
six of which defendant did not challenge on appeal, must be

affirmed.        The State argues that T.C.'s state of mind, including

the    email      to    the    Resident         Assistant     and    T.C.'s     incessant

checking       of      defendant's        Twitter        account,    were      admissible

independent of N.J.S.A. 2C:16-1(a)(3), because they relate to an

element of the charge of invasion of privacy under                               N.J.S.A.

2C:14-9(a)       and    (c),    to   wit,       establishing    that     T.C.    did   not

consent to being viewed having sexual relations with M.B.                               We

are not persuaded by the State's arguments.

      To warrant the reversal of a jury verdict in cases in which

admitted       evidence        implicates        a      constitutional      right,     the

reviewing court must determine whether the alleged error was

"harmless beyond a reasonable doubt."                     State v. Weaver, 219 N.J.

131, 154 (2014) (quoting Chapman v. California, 386 U.S. 18, 24,

87    S.   Ct.      824,   828,      17    L.     Ed.    2d   705,    710-11     (1967)).

Pomianek's holding implicates defendant's constitutional rights

under the Due Process Clause of the Fourteenth Amendment because

it rendered inadmissible the evidence adduced at trial relating

to N.J.S.A. 2C:16-1(a)(3).                Pomianek, supra, 221 N.J. at 70.

      Here, the State's case was predicated on accomplishing two

objectives: (1) to show defendant was a homophobic, computer

savvy young man who combined these two features of his character

to prey upon his socially awkward, gay roommate; and (2) to




                                             40                                  A-4667-11T1
humanize   T.C.   by   showing   how   defendant's   misconduct    affected

T.C.'s life (as described by Grover, the Resident Assistant who

testified that T.C. requested a room change "ASAP," and produced

evidence of T.C.'s incessant monitoring of defendant's Twitter

account during the critical days preceding his death). 16             These

were the twin pillars of the State's case.           The Supreme Court's

holding in Pomianek undermined the evidential foundation of the

second pillar.    Stated differently, admission of T.C.'s state of

mind evidence constituted an error "of such a nature to have

been clearly capable of producing an unjust result."          R. 2:10-2.

     The verdict sheet given to the jury by the trial court

contained charges arising from the crime of second and third

degree bias intimidation, defined in N.J.S.A. 2C:16-1(a)(3), as

reflected in counts 2, 4, 6, and 8 of the indictment.              The jury

returned   a   verdict   finding   defendant   guilty   on   all   charges.

N.J.S.A. 2C:16-1(a)(3) defines third degree bias intimidation as

follows:


16
   Although not a formal part of the case, the trial judge
informed all prospective jurors during voir dire that T.C.
committed suicide and that defendant was not charged with either
causing or contributing to his death.   T.C.'s suicide was also
mentioned during the course of the trial.     In cross-examining
M.H., defense counsel elicited testimony about texts that
referred to T.C.'s suicide. The attorneys did not request that
the court include a jury charge addressing T.C.'s suicide, and
the trial judge did not include such a charge sua sponte as part
of his charges to the jury.



                                       41                          A-4667-11T1
           A person is guilty of the crime of bias
           intimidation    if    he    [or  she]   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.A. 2C:33-4]
           [N.J.S.A. 2C:39-3]; [N.J.S.A. 2C:39-4]; or
           [N.J.S.A. 2C:39-5],

                . . . .

           (3) under circumstances that caused any
           victim of the underlying offenses 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.

           [(Emphasis added).]

      In Pomianek, the Supreme Court held that N.J.S.A. 2C:16-

1(a)(3)   violated     the   Due   Process   Clause      of    the    Fourteenth

Amendment because it focused "on the victim's perception and not

the   defendant's    intent."      Pomianek,    supra,    221       N.J.   at    70.

Here, the State presented evidence that focused exclusively on

T.C.'s    perception    of   defendant's       conduct,       not    defendant's

intent.    The Supreme Court explained in Pomianek the inherent



                                     42                                    A-4667-11T1
danger of permitting a jury to consider evidence that focuses

only on the victim's state of mind:

           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 [or her] based on his [or her]
           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
           [or she] had no purpose to intimidate or
           knowledge that his [or her] conduct would
           intimidate a person because of his [or her]
           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 [or her] words or
           conduct that led to the victim's reasonable
           perception   even  if    that   perception   is
           mistaken.

           [Id. at 82.]

    Here, the State presented substantial evidence of T.C.'s

state of mind as a means of establishing defendant's guilt.

Grover's testimony in particular focused on T.C.'s demeanor on

September 21, 2010, when he first had contact with him.                   Even

after   redaction,   the     email   T.C.    wrote   to   Grover   that   same

evening   attributes   his    distress      to   defendant's   tweets.     The

Rutgers administrator testified that T.C. submitted a request

for a room change, citing concerns about his roommate using his




                                     43                              A-4667-11T1
webcam to spy on him.            A forensic investigator testified that

T.C.    visited    defendant's      Twitter    account    fifty-nine     times

between September 13 and September 22, 2010.               M.B. stated that

T.C. had a "visible reaction" to the sound of laughter in the

courtyard outside his room and was troubled by a gap in the

window blinds that might have allowed someone to see inside.

There was no evidence that defendant ever attempted to see T.C.

and M.B. through a window.

       The State argues that this evidence was relevant to the

question of whether T.C. consented to defendant's observations

of himself and M.B. under N.J.R.E. 401.               The State also argues

that the redacted portion of T.C.'s email was admissible under

the "then existing state of mind" exception to the rule against

hearsay, N.J.R.E. 803(c)(3).         Even if this evidence may have had

a broad relevance on such limited grounds, N.J.R.E. 402, we are

satisfied that under a post-Pomianek analytical framework, the

trial   judge     would   have    found    under    N.J.R.E.   403   that   the

prejudicial effect of admitting this evidence would far exceed

its probative value.        Ultimately, however, this is a non-issue

because defendant never claimed that he had T.C.'s consent to

use the webcam to watch him having sexual relations with M.B.

       The trial court engaged in an               N.J.R.E. 403 analysis by

weighing the relevance of the evidence as it related to the




                                      44                              A-4667-11T1
N.J.S.A.      2C:16-1(a)(3)    charges,     but    it    did   not   balance    the

probative value of the evidence under N.J.S.A. 2C:14-9.                       If it

had, it is highly unlikely that it would have found the evidence

admissible because defendant has never claimed he had consent as

an affirmative defense to the charge of invasion of privacy.

Defendant has never claimed that T.C. was aware that the webcam

was transmitting video from inside the room.                   M.W.'s testimony

that    she     and    defendant    viewed        T.C.   surreptitiously        was

uncontroverted.

       It is undisputed that constitutionally defective evidence

of   T.C.'s    state   of    mind   permeated      the   State's     entire    case

against defendant.          Indeed, this evidence was one of the focal

points of the prosecutor's summation to the jury.

                   Now . . . we come to [T.C.]. You hear
              about the fact that [T.C.] at some point
              starts to go on to the defendant's Twitter
              page[,] and in the course of going on the
              defendant's Twitter page at various points
              in time, . . . what does he discover?     He
              discovers . . . the tweet from the 19th,
              [September  2010],   the  tweet   that  said
              ["]roommate asked for room.["]   And when he
              finds that tweet[,] what does he do? You
              hear from Bill O'Brien from the Rutgers
              University Housing Department that at 3:55
              a.m.[,] [T.C.] has filed an online room
              change request through the automated system.
              So just a little while after viewing that
              tweet and discovering it[,] he makes an
              online request for a room change.    He also
              discovers [at] about 9:15 that night -- just
              a little bit before his guest M.B. is going
              to arrive -- the tweet from that evening,



                                       45                                A-4667-11T1
the tweet that's sent out after he texted
his roommate again and asks for . . .
permission to use the room . . . for some
private time.      And the defendant tells
him[,]["][Y]eah, no problem.["]     He finds
out about that second tweet.
     And I suggest to you, ladies and
gentlemen, the online room change request at
that point was not going to be something
that was good enough -- not something that
he could wait for. So what does he do? He
goes to see one of the resident assistants
at the dorm.      And you heard from that
resident assistant, Raahi Grover, who came
in here and testified.    He tells you about
[T.C.][,] who he doesn't really know that
well. . . . But [T.C.] shows up at his room.
And what does he tell you about [T.C.]'s
demeanor at that point?      He tells you he
seems uncomfortable[;] he seems to be upset
about the information . . . and [he] makes a
request . . . for a room change.        Raahi
Grover was a resident assistant at Rutgers
University for three years[.] [H]e told you
. . . he never had encountered . . . a
situation like this[,] and because of that
situation[,] he asks [T.C.] to put in his
own words what he had just told him [and to]
send it to him in an email so that he can
put it into a report that he then . . .
choose[s] to file . . . with his supervisors
so that immediate action can be taken. And
he tells you in his own words, in his own
thoughts, that once he hears what [T.C.]
tells him[,] he wants the situation to be
brought to his supervisor's attention.     He
wants that situation to be escalated . . .
because he knew the seriousness of it, and
he files that incident report form and part
of that incident report form has [T.C.]'s
own words[:] "I feel that my privacy has
been    violated    and   I    am   extremely
uncomfortable sharing a room with someone
who would act in this manner."       And then
Raahi Grover puts down at the bottom, as
included in his incident report, ["][T.C.]



                     46                         A-4667-11T1
is quite upset and feels uncomfortable.
[T.C.] prefers a roommate switch ASAP and
would like to see [some] sort of punishment
for Dharun Ravi.["]

     . . . .

     I just want to go back for a moment,
ladies and gentlemen, to the screen shots
that you saw about those Twitter messages.
Remember that you heard testimony that the
computer of [T.C.] was examined and that's
where those screen shots were found.      Those
[shots] were taken by [T.C.] to memorialize
what he saw on the Twitter page.      So I ask
you to think about . . . when [T.C.] first
viewed . . . the first Twitter message that
he saw.    He saw that at approximately one
o'clock in the morning when he took the
screen shot.     Maybe he saw it sometime
before and then decided to take the screen
shot later.
     Think about the situation of [T.C.].
You've heard just about every person that's
come into this courtroom to testify that
[T.C.] was quiet[;] he was shy.        Maybe he
wasn't as social as the kids [who] hung out
in the lounge, the kids [who] played pool,
[or] the kids [who] all went to the dining
hall together. Three weeks into his college
experience[,] and he finds out that his
sexual orientation has been broadcast to the
defendant's Twitter followers. He finds out
his   private   sexual   activity    has   been
exposed. He knows it's been exposed. It's
been exposed at least to [M.W.]. It's been
exposed by words in that tweet. And what do
you think he's thinking?        If [M.W.] saw
it[,] did [C.C.] see it?     Did other people
[i]n that hallway see it? Did people on the
other side of Davidson C see it? Did other
people [who] hang out in the lounge come
down and see it?     You don't think that he
was    intimidated     by     learning      that
information[?] [F]earful[?]      [E]mbarrassed?
He'd been exposed[.]    [N]ot only his being,



                      47                           A-4667-11T1
            his identity, his sexual orientation, but
            his private sexual activity was exposed
            also. And then . . . you go back to that .
            . .   documentation about how many times he
            checked that Twitter page from September
            13th till the 19th. . . .      What was he
            checking for?

            [(Emphasis added.)]

      As   this    lengthy       verbatim    recitation      of    the   prosecutor's

closing argument to the jury shows, the second pillar of the

State's case expressly relied on evidence describing the victim

feeling humiliated and embarrassed as indicative of defendant's

state of mind; the suggested inference is that defendant must

have acted with the intent to intimidate because the evidence

shows T.C. in fact felt embarrassed and humiliated.                       It would be

unreasonable to conclude that this evidence, coupled with the

prosecutor's strong and eloquent remarks, did not have the clear

capacity to produce an unjust result.

      Reversing a jury verdict based on "trial error 'implies

nothing with respect to the guilt or innocence of the defendant'

but   rather      'is   a   determination         that   a   defendant        has    been

convicted through a judicial process which is defective in some

fundamental       respect.'"        State    v.   Gibson,     219      N.J.   227,    244

(2014) (quoting Burks v. United States, 437 U.S. 1, 15, 98 S.

Ct. 2141, 2149, 57 L. Ed. 2d 1, 12 (1978)).                       The standard that

governs    our    review    of    all   criminal     trials       is   fairness.      "A




                                            48                                 A-4667-11T1
defendant is entitled to a fair trial but not a perfect one."

State    v.   R.B.,   183   N.J.   308,       334     (2005)   (quoting      Lutwak     v.

United States, 344 U.S. 604, 619, 73 S. Ct. 481, 492, 97 L. Ed.

593, 606 (1953)).

       The case against defendant in this trial was replete with

evidence presented by the State to support the charges of bias

intimidation under N.J.S.A. 2C:16-1(a)(3).                     The State asked the

jury to return a guilty verdict as to all fifteen counts in the

indictment.       The   jury   deliberated            and   returned    a    unanimous

verdict guided by then legally sound instructions given by the

judge.     Any attempt to filter out the influence exerted by the

evidence pertaining to N.J.S.A. 2C:16-1(a)(3) would be as futile

as using a cloth strainer to remove the adulteration caused when

a tablespoon of ink is dropped into a glass of milk.                              We can

never be reasonably confident that the verdict produced was free

from the adulterated influence of the inadmissible evidence.

                                      III

                                          A

                            Hindering Apprehension

       Defendant argues that the trial judge erred in denying his

motion for a judgment of acquittal on Count 12, charging him

with     second   degree    hindering          apprehension      in    violation        of

N.J.S.A.      2C:29-3(b)(3),    because         the    State   failed       to   present




                                          49                                     A-4667-11T1
competent    evidence     showing     that     the   texts    messages       sent   by

defendant     affected     the    information        M.W.    gave     to     the    law

enforcement officers who questioned her that day.

    The hindering apprehension charge reflected in Count 12 is

predicated on the texts exchanged between M.W. and defendant on

September 23, 2010.        On that day, M.W. was picked up by Rutgers

University     Detective    Rager      and     Middlesex      County       Prosecutor

Investigator    Daniewicz       and   transported      to    the   Rutgers     Police

Department for questioning.              Defendant also argues the trial

court erred by allowing the State to rely on these same facts to

charge   defendant      under    Count    14    with    third      degree     witness

tampering, as defined in N.J.S.A. 2C:28—5(a)(1) and/or (2).

    Defendant raised these two legal issues in pretrial motions

and after the State rested its case in the form of a motion for

a Judgment of Acquittal, pursuant to Rule 3:18-1.                          In denying

defendant's     motion,     the       trial    judge    made        the     following

statement:

                 [Y]ou     theoretically    can   hinder
            something   before    you're  aware  of   an
            investigation.    And in theory, once you're
            aware it's been launched or initiated, you
            can tamper with it.
                 Having said that, it also seems to me
            that the same course of conduct underlies
            both charges. It seems to me that's really
            an issue of merger at a later point. But at
            this point I think they both have to
            survive.




                                         50                                  A-4667-11T1
      We disagree.      Counts 12 and 14 were both based on the text

exchange that occurred between defendant and M.W. on September

23, 2010, while M.W. was in an interrogation room at the Rutgers

Police Department.          We have described in detail the confluence

of events that led defendant to text M.W. while she was still in

the headquarters of the University Police.                   The record shows,

and   the    State   does    not    dispute,    that   the    exchange      of   text

messages     between   M.W.    and    defendant    occurred       after   M.W.    had

given her statement to the law enforcement investigators.

      Through these text messages, defendant asked M.W. what she

had told the police and suggested that she characterize what he

did to his laptop webcam as merely "messing around with the

camera."     According to defendant, T.C. "wanted to have a friend

over and [he] didn't realize they wanted to be all private."

However, M.W. made clear to defendant that she had told the

police      interrogators     all     that     occurred      on    Sunday    night,

September 19, 2010.          Stated in the vernacular of this form of

electronic communication, M.W. stated the following:

             I told them everything . . . Like literally
             everything bcu (sic) they asked me to tell
             them exactly what happened.

Defendant then brought up the events of Tuesday night, September

21, 2010 and suggested that M.W. tell the investigators: "I

turned off my computer that day."              M.W. replied that she did not




                                        51                                  A-4667-11T1
know anything about Tuesday night.                       Again, quoting her actual

words, M.W. stated, "Idk whT happened that day[.]"

    At trial, M.W. testified that everything she told the law

enforcement investigators on September 23, 2010, was the truth.

Defendant's text messages did not have any effect on                                  M.W.'s

account     of    the       events       that        occurred   that        day;   nor     did

defendant's texts influence the manner in which she described

those   events.            M.W.   also    emphasized         that     she    did   not   know

anything about what occurred on Tuesday night.                          In fact, she was

not certain if the interrogating investigators even brought up

any occurrence related to Tuesday, September 21, 2010.

    Count        12    charged    defendant           with   second    degree      hindering

apprehension          in   violation       of        N.J.S.A.   2C:29-3(b)(3),           which

provides:

            A person commits an offense if, with purpose
            to hinder his [or her] own detention,
            apprehension,   investigation,  prosecution,
            conviction or punishment for an offense or
            violation of Title 39 of the Revised
            Statutes or a violation of chapter 33A of
            Title 17 of the Revised Statutes, he [or
            she] . . .

            [p]revents or obstructs by means of force,
            intimidation or deception any witness or
            informant   from   providing   testimony   or
            information,      regardless      of      its
            admissibility, which might aid in his [or
            her] discovery or apprehension or in the
            lodging of a charge against him [or her.]




                                                52                                  A-4667-11T1
      Section (b) was added to N.J.S.A. 2C:29-3 by L. 1981, c.

290, § 29 as a direct response to the threat of violence against

potential witnesses by organized crime.                Cannel, Current N.J.

Criminal Code Annotated, comment 3 on N.J.S.A. 2C:29-3 (2016).

For that reason, N.J.S.A. 2C:29-3(b)(3) adds the requirements of

force, intimidation, or deception to the elements of witness

tampering     set    forth    in    N.J.S.A.   2C:29-3(a)(3).         State   v.

Krieger, 285 N.J. Super. 146, 152-53 (App. Div. 1995).

             It is surely a matter of common experience
             that people charged or expecting to be
             charged with [a] crime will seek assistance
             from those who may have relevant knowledge.
             A   mere  request  for  investigational  or
             testimonial assistance ought not to be
             criminalized on the basis that it might be
             construed as an effort to suppress evidence
             of a crime.

             [Id. at 152.]

      Here, the State does not claim, and the evidence presented

at   trial   did    not   show,    that   defendant   exerted   any   force   or

intimidation on M.W.          Although the State argues that his texts

constituted deception, the only potentially false statement that

defendant made was his claim to have shut his computer off on

Tuesday night.       This is not the type of "deception" the statute

seeks to penalize.           The press release accompanying the passage

of L. 1981, c. 290, § 29 explained that it "'[e]stablishes a new

crime for any person who attempts to hinder his [or her] own




                                          53                           A-4667-11T1
apprehension, prosecution or conviction by concealing evidence,

intimidating      witnesses,      or    by     giving      false    information        to   a

police   officer.'"           State    v.    D.A.,   191     N.J.    158,    169    (2007)

(first   alteration       in    original)         (emphasis    added       and    omitted)

(quoting      Press    Release,       Acting      Governor     Joseph       P.    Merlino,

Senate Bill No. 1537 (Sept. 24, 1981)).

    Even if we were to view defendant's characterizations of

his conduct as misleading or outright false, his communications

were directed at M.W., not the police.                        Furthermore, because

defendant was not a member of organized crime, his text messages

were not the type of misconduct that the statute seeks to deter

or prevent.        See State v. Meinken, 10 N.J. 348, 352 (1952)

(holding that courts should read statutes in relation to the

mischief    and   evil    sought       to    be   suppressed       in   order     to   give

effect   to    terms     in    accordance         with    their     fair    and    natural

meaning).       Defendant's       texts      primarily      sought      assistance       and

information from M.W., who had knowledge of the investigation.

Defendant's       conduct,      therefore,         does      not     fall    under       the

misconduct      proscribed       by    N.J.S.A.          2C:29-3(b)(3).           Krieger,

supra, 285 N.J. Super. at 152.

    To     convict     defendant        under      N.J.S.A.        2C:29-3(b)(3),        the

State is required to prove that he prevented or obstructed M.W.

from providing the police with information that would aid in his




                                             54                                    A-4667-11T1
prosecution.     Our analysis, guided by the long-settled standards

established by the Supreme Court in State v. Reyes, 50 N.J. 454,

459   (1967),    and    codified   in        Rule   3:18-1,   requires    us     to

determine

            whether, viewing the State's evidence in its
            entirety,   be   that  evidence   direct  or
            circumstantial, and giving the State the
            benefit of all its favorable testimony as
            well as all of the favorable inferences
            which reasonably could be drawn therefrom, a
            reasonable jury could find guilt of the
            charge beyond a reasonable doubt.

      We are satisfied that defendant is entitled to a judgment

of acquittal as a matter of law because the record developed at

trial is devoid of any evidence to support the jury's guilty

verdict   on    Count   12,   charging       defendant   with   second    degree

hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(3).

                                        B

                              Witness Tampering

      Count 14 charged defendant with third degree tampering with

a witness, in violation of N.J.S.A. 2C:28-5(a)(1) and/or (2),

which provides:

            A person commits an offense if, believing
            that an official proceeding or investigation
            is pending or about to be instituted or has
            been instituted, he [or she] knowingly
            engages in conduct which a reasonable person
            would believe would cause a witness or
            informant to:

                  (1) Testify or inform falsely;



                                        55                               A-4667-11T1
                 (2) Withhold       any        testimony,
                     information, document or thing[.]

    In D.A., supra, 191 N.J. at 169, the Court compared the

hindering    statute,   N.J.S.A.    2C:29-3(b),   with   the     tampering

statute, N.J.S.A. 2C:28-5.         Writing on behalf of a unanimous

Court, Justice Long explained:

                 [T]hough both the tampering statute,
            N.J.S.A. 2C:28-5, and the hindering statute,
            N.J.S.A. 2C:29-3, broadly proscribe the
            suppression   of    evidence,    there     is    a
            fundamental     difference     between       them.
            N.J.S.A. 2C:29-3 prohibits such suppression
            at any point prior to a defendant forming a
            belief that an official action has been or
            is about to be instituted.      Unlike N.J.S.A.
            2C:28-5, N.J.S.A. 2C:29-3 is phrased in
            terms of avoiding discovery, apprehension,
            or the lodging of a charge.            For that
            reason, it is also associated in the Code
            with escape, eluding, resisting, flight, and
            physical    interference,     all     of     which
            constitute efforts by a defendant to stay
            out of the official cross-hairs of law
            enforcement, without necessarily believing
            that   official     action    exists      or    is
            contemplated.     On the contrary, N.J.S.A.
            2C:28-5 addresses action taken after one is
            already the focus of, or believes he may be
            the focus of, an official proceeding.
                 That distinction is important.            The
            conduct that hindering addresses is the
            wrongful avoidance of an official action by
            attempting   to    prevent   a    witness     from
            reporting a crime to the police; the conduct
            that is the focus of tampering is the
            wrongful   interference    with    an    official
            action that defendant believes has begun or
            is about to begin.




                                    56                            A-4667-11T1
              [D.A., supra, 191 N.J. at 169-70 (Emphasis
              added).]

       The temporal distinction between the tampering statute and

the    hindering     statute    is    a       key    factor    here.         While     it   is

possible for a defendant to be charged with violation of both

statutes,      the   two    violations         cannot    be        based    on   a   single,

temporally      discrete     act.         A    defendant       can    be     charged      with

hindering     apprehension      for    intimidating            a    witness      before     any

investigation is underway, and thereafter charged with witness

tampering based on conduct committed after the investigation is

pending, inducing a witness to testify falsely.                            But a defendant

cannot be charged with both crimes based on a single discrete

act.     Count 12 and Count 14 are both factually predicated on

defendant's text messages to M.W. on September 23, 2010.                                  This

discrete conduct cannot legally support convictions under both

Counts 12 and 14.

       In    order   to    establish      the       requisite       state     of     mind   to

transform      the    suppression         of        evidence       from     hindering        to

tampering, the State must prove that "defendant was aware of

facts that would lead a reasonable person to believe that an

official action was pending or about to be instituted."                               Id. at

170.    Here, there was ample evidence showing that defendant was

aware   of    pending      official    action         when    he     contacted       M.W.    on

September 23, 2010.          Grover informed defendant on September 22,



                                              57                                     A-4667-11T1
2010,     that        an     incident     report       had     been    filed       concerning

allegations made by T.C. and that defendant would be hearing

from senior management about the matter.                           Later that evening, a

police officer came to defendant's dorm room inquiring as to

T.C.'s     whereabouts.                  The    next     morning,         counselors          and

administrators             informed      defendant      that       T.C.      had    committed

suicide and directed him to go home.                         That evening, A.C. phoned

defendant      to     tell      him    that    M.W.    had    been    picked       up    by   the

police.       When defendant called M.W. on her cellphone, she told

him that she could not speak to him because she was at the

University Police Headquarters.                       Thus, at the time defendant

sent    his   text         to   M.W.,    he    was    well    aware    that    an       official

investigation          was      underway.       Under    the       Court's    reasoning        in

D.A.,    defendant           should     have    been    charged       only    with       witness

tampering, contrary to N.J.S.A. 2C:28-5(a)(1) or (2).                                   Based on

the facts we have described, there is no legal basis to charge

defendant        of        hindering     apprehension         under       N.J.S.A.        2C:29-

3(b)(3).       There was, however, sufficient evidence to convict

defendant of tampering.

                                                IV

                                          Conclusion

       This case has understandably received a great deal of media

attention.            Defendant         was    convicted      of    multiple       counts      of




                                                58                                      A-4667-11T1
invasion of privacy, bias intimidation, hindering prosecution,

and tampering with evidence.                 His criminal conduct was directed

against his then college roommate, T.C., and M.B., a man T.C.

invited to his dorm room on two occasions to engage in intimate

and indisputably private sexual activity.                      The State's case was

based on defendant's opprobrium of T.C.'s sexual orientation.

The State alleged that defendant used his technological prowess

to effectively convert the video webcam attached to his desktop

computer        into    the    functional         equivalent     of     an     electronic

peephole.         Thereafter,         defendant     adroitly     used    social       media

tools to disseminate the time he planned to spy on T.C, as well

as broadcast (or attempt to broadcast) a live video feed of T.C.

having consensual sexual relations with a male guest in the dorm

room he shared with defendant.

    Tragically,          T.C.    committed        suicide    after      he     discovered

defendant's       voyeuristic          machinations.           The     sense    of     loss

associated       with   a     young    man   taking    his   own      life    defies   our

meager     powers       of    reason     and      tests   our        resolve    to     seek

consolation.       From a societal perspective, this case has exposed

some of the latent dangers concealed by the seemingly magical

powers of the internet.                The implications associated with the

misuse     of    our    technological          advancements      lies        beyond    this

court's competency to address.




                                             59                                  A-4667-11T1
       Defendant was not charged with causing or contributing to

T.C.'s death.         However, the social environment that transformed

a private act of sexual intimacy into a grotesque voyeuristic

spectacle      must    be        unequivocally         condemned    in    the   strongest

possible    way.           The   fact    that    this    occurred    in    a    university

dormitory, housing first-year college students, only exacerbates

our collective sense of disbelief and disorientation.                              All of

the    young    men    and       women   who     had    any   association       with   this

tragedy must pause to reflect and assess whether this experience

has cast an indelible moral shadow on their character.

       Pursuant       to    the    Supreme       Court's      decision    in     Pomianek,

supra, 221 N.J. at 69, defendant's convictions on Counts 2, 4,

6, and 8, which charged him with third degree bias intimidation,

as reflected in Middlesex County Indictment No. 11-04-00596 and

prosecuted pursuant to N.J.S.A. 2C:16-1(a)(3), are vacated and

defendant's charges are dismissed with prejudice as a matter of

law.    As we have explained in Section III herein, the conviction

under Count 12 for second degree hindering apprehension contrary

to N.J.S.A. 2C:29-3(b)(3) must be vacated as a matter of law and

the    charge     dismissed         with       prejudice      for   insufficiency        of

evidence.       R. 3:18-1.          Finally, we conclude that the evidence

the State presented to prove the charges in Counts 2, 4, 6, and

8 tainted the jury's verdict on the remaining charges, depriving




                                                60                                A-4667-11T1
defendant of his constitutional right to a fair trial.             We are

compelled to remand the matter for a new trial on Counts 1, 3,

5, 7, 9, 10, 11, 13, 14, and 15.

    Reversed and remanded.     We do not retain jurisdiction.           The

State's   cross-appeal   challenging   the   sentence   imposed   by    the

trial court is moot.




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