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New Jersey Appeals Court Nixes Lewdness Conviction

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A New Jersey appeals court reversed a lewdness conviction in Palisades Interstate Park, saying lower courts that ruled on the case were wrong on the law and questioning the credibility of the arresting officer.

“An abiding sense of wrongness pervades this conviction,” wrote Christine L. Miniman and Clarkson S. Fisher, the two judges who wrote the August 7 decision.

The decision concerned the June 9, 2004 arrest of a 44-year-old gay man in the park, which stretches along the Hudson River from Fort Lee in New Jersey to Bear Mountain in New York.

At a June 2 trial last year, the man testified that he was in the park to eat lunch when the arresting officer, Detective Thomas Rossi, began a conversation with him and then repeatedly urged him to expose himself as an apparent prelude to sex. The man briefly exposed his penis and was arrested.

Rossi testified that the arrest came after the gay man approached him and, after a brief conversation with no urging, exposed himself and began to masturbate.

Faced with these conflicting stories, Steven J. Zaben, the judge who sits on the park’s Municipal Court, believed Rossi, saying that the officer had no reason to lie while the defendant was facing a conviction. Zaben also concluded that the fact that the defendant was gay suggested he was in the park for sex.

Zaben gave the defendant a $1,000 fine, a five-day suspended jail sentence, a two-year ban from the park, and a year on probation. The judge allowed him to use the park highway to travel to and from work.

The police force in the New Jersey section of the park made 37 lewdness arrests as of June 10, 2005 and 95 in 2004, according to a 2005 article on northjersey.com.

Typically, Zaben’s sentences in these cases include a roughly $1,000 fine, a five-day suspended jail sentence, two years on probation, a two-year ban from the park that includes a bar on using the park highway, and, in some cases, court-supervised counseling.

In two recent cases, Zaben allowed lewdness defendants to plead guilty to a lesser charge of violating a park ordinance, pay a $200 fine, and be banned from the park for one year.

The defendant in the 2004 case appealed Zaben’s verdict to Superior Court where Judge Donald R. Venezia upheld the verdict and added alcohol and drug testing to the sentence. At the 2005 trial, the defendant asked that his name not be used and on August 9 he asked that Gay City News continue to not use his name. The court decision identified him as did the Newark Star Ledger, which first reported the ruling, the Bergen Record, Gay.com, and Advocate.com.

In striking down the verdict, the appeals court attacked Rossi’s honesty.

Rossi testified that he had made “over 100 arrests for lewdness” since joining the force in 2002 with “over 50” of those arrests happening in 2004. In every case, he claimed the defendants exposed themselves and masturbated.

“Defendant presented a persuasive attack on Rossi’s credibility, raising serious doubts about whether it was believable that a police officer could have had almost a hundred men approach him, pull out their genitals, and start masturbating without any enticement by the officer at all,” the court wrote.

The New Jersey lewdness law requires that the act be “flagrantly lewd and offensive” and that the person “knows or reasonably expects to be observed by another non-consenting person who would be affronted or alarmed.”

Rossi testified that only he and the defendant were present when the exposure happened. The appeals court clearly believed that Rossi had enticed the defendant to expose himself and concluded, “This would indicate that the defendant intended to expose himself only to a consenting participant and did not think it reasonable that anyone else could see him. Nothing in the evidence suggests the contrary.”

According to the decision, Rossi testified that “each arrest was different and that defendant’s arrest report was original.” The defense questioned Rossi about 26 of his lewdness cases, including the 2004 case, in which the records were essentially identical. Rossi said that “the act must have been identical then.”

The appeals court did not spare Zaben or Venezia. Both misunderstood the lewdness law and neither adequately weighed Rossi’s credibility, the court concluded.

“Neither the municipal court nor the Law Division discussed the evidence that impeached Rossi’s testimony,” the judges wrote. They singled out Zaben.

“Indeed, if the test adopted by the judge represented an adequate basis for weighing credibility, no person accused of a crime would ever be believed and no officer would ever be doubted,” they wrote. Zaben’s reasoning was “erroneous.”

Steven Goldstein, chair of Garden State Equality, New Jersey’s statewide gay lobbying organization, said the decision might end the arrests in the park.

“I think that this opinion, because it is so scathing, will have a chilling effect on the police and on Zaben,” he said. “This has to put the Palisades Park Commission, police officers, and the judge on notice that their game is over.”

Last year, Garden State and the American Civil Liberties Union of New Jersey called for an investigation into the arrests in the park. The state took no action.

“This really does give us a reason to go to Governor Corzine anew,” Goldstein said.

The lawyer who represented the gay man on appeal, Howard B. Leopold, a partner at Goodman & Leopold, a New Jersey law firm, praised the ruling.

“Our client should have never have been arrested in the first place and certainly he should never have been found guilty,” Leopold said in a statement. “He found himself in the wrong place at the wrong time in the middle of a trap.”

John J. Parr, chief of the park police, did not respond to calls seeking comment. In an e-mail, Douglas F. Doyle, the park prosecutor, declined to comment.

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Updated 5:17 pm, July 20, 2018
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