STATE OF NEW JERSEY v. MATTHEW PINTO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1944-04T51944-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW PINTO,

Defendant-Appellant.

_______________________________________

 

Submitted October 26, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 70-2004.

Jeffrey Paul Horblit, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, on the letter-brief).

PER CURIAM

Defendant appeals his Superior Court de novo disorderly persons conviction of N.J.S.A. 2C:14-4a. We reverse.

The facts adduced in the municipal court proceeding are not particularly complex, and, for the most part, not disputed. Suffice it to say that, sometime shortly after 1:00 p.m. on July 7, 2003, defendant was in the cosmetics aisle of the CVS store located in the Woodbridge Mall. One of the CVS employees had seen him in the store on prior occasions. The store was empty except for two girls in the same aisle. The girls had their backs to defendant. The employee and her supervisor were in the office. Upon a call from them, a mall security officer joined them. They could see defendant through a one-way mirror; he could not see them. They observed defendant "vigorously" moving his hand "up and down" in his front pants pocket, near his groin area. The employee who had seen him before said this behavior was what she had previously observed. To the observers, it seemed as if he was masturbating. But they did not observe that he had an erection, or facial gestures, moaning, stains or wetness, or other physical evidence of masturbation. Defendant admitted that his hand was in his pocket and that he was rubbing the area. However, he claimed to have jock itch which he was scratching. His wife corroborated the existence of jock itch.

On de novo appeal, the Superior Court judge concluded that defendant's conduct constituted lewdness within the meaning of N.J.S.A. 2C:14-4a thusly:

The defendant here committed an act of contact with his groin area knowing or reasonably expecting that this act could be observed by other nonconsenting persons who might be affronted or alarmed. The facts presented below based on the observations of [the State's witnesses] clearly satisfy this standard, satisfy this element beyond a reasonable doubt. This defendant touched and rubbed himself for whatever reason or reasonably expected that this touching or rubbing would likely be observed by members of the public at a CVS store in the middle of a crowded mall during lunch hour.

. . . .

I can appreciate that this defendant knows that an innocent act, an act that was not intended from his perspective for any kind of sexual gratification has been transmogrified by the witnesses here into an act of lewdness, but the fact of the matter is that when the defendant touched himself and rubbed himself for whatever circumstances in public, that that is a sufficiently flagrant act to sustain this conviction.

[Emphasis added.]

Defendant's conviction, clearly, was not based upon a finding by the trial judge that, in fact, he was masturbating in public. Rather, it was based upon the finding that he "touched himself and rubbed himself" in public.

On appeal, defendant contends:

POINT ONE: EXPOSURE[] OF THE GENITALS IS REQUIRED FOR CONVICTION UNDER N.J.S.A. [2C:]14-4a.

POINT TWO: THE SUPERIOR COURT'S DE NOVO REVIEW WAS LEGALLY AND FACTUALLY INSUFFICIENT.

POINT THREE: THE SUPERIOR COURT FAILED TO REVIEW THE MUNICIPAL COURT'S BREACH OF THE ATTORNEY-CLIENT PRIVILEGE.

POINT FOUR: THE SUPERIOR COURT FAILED TO REVIEW THE MUNICIPAL COURT'S DENIAL OF DEFENDANT'S CONSTITUTIONAL RIGHT TO THE PRESUMPTION OF INNOCENCE.

We have considered these contentions in light of the record and applicable law. Although not for the same reasons as argued by defendant in point one, we agree that the evidence here cannot support, beyond a reasonable doubt, a conviction of N.J.S.A. 2C:14-4a. We need not, therefore, address points three and four.

Enacted as part of the New Jersey Code of Criminal Justice in 1978, and thereafter amended in 1992, the lewdness statute presently provides in full:

a. A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed.

b. A person commits a crime of the fourth degree if:

 
(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.
 
(2) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a person who because of mental disease or defect is unable to understand the sexual nature of the actor's conduct.
 
c. As used in this section:

 
"lewd acts" shall include the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.

[N.J.S.A. 2C:14-4.]

Lewdness, then, can be either a disorderly persons offense or a fourth-degree crime. The disorderly persons offense is committed when the actor engages in "any flagrantly lewd and offensive act," which may include exposing of the actor's genitals, under circumstances such that the actor "knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed." N.J.S.A. 2C:14-4a. Lewdness becomes a fourth-degree crime when it involves exposure of intimate parts for the purpose of sexual arousal or gratification where the actor knows or reasonably expects that he is likely to be seen by a child less than thirteen years or by a victim who suffers from a mental disease or defect that makes that victim unable to understand the sexual nature of the actor's conduct. N.J.S.A. 2C:14-4b(1),(2).

While lewdness, within the meaning of N.J.S.A. 2C:14-4, must involve exposure of intimate parts for the purposes of the fourth-degree offense criminalized in subsection b, such exposure is not a necessary element of the disorderly persons offense criminalized in subsection a. State v. Zeidell, 154 N.J. 417, 430 (1998). Cf. State v. Breitweiser, 373 N.J. Super. 271, 285 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005). Fourth-degree lewdness "is limited to exposing or displaying an actor's intimate parts rather than touching them." State v. Zeidell, supra, 154 N.J. at 431. On the other hand, sexual contact, such as masturbation, when committed "in the view of" a child who is less than thirteen years old, and where the actor is at least four years older than the child, will constitute second-degree sexual assault criminalized by N.J.S.A. 2C:14-2b. Ibid. See also State v. Breitweiser, supra, 373 N.J. Super. at 286-87; State v. Ridgeway, 256 N.J. Super. 202, 206 (App. Div.), certif. denied, 130 N.J. 18 (1992). Such touching, i.e., masturbation, may also provide a basis for third- or fourth-degree sexual contact criminalized by N.J.S.A. 2C:14-3, where the additional elements required thereby exist.

Neither second-degree sexual assault, third- or fourth-degree criminal sexual contact, nor fourth-degree lewdness, are at issue here. Rather, the issue is whether the State proved beyond a reasonable doubt the elements of the disorderly persons offense criminalized in N.J.S.A. 2C:14-4a. That is, whether defendant engaged in behavior which was (1) "flagrantly lewd and offensive," which (2) he "knows or reasonably expects is likely to be observed by other non-consenting persons who would be affronted or alarmed." N.J.S.A. 2C:14-4a.

Assuming arguendo that the presence of the two girls in the cosmetics isle, coupled with the public location, would satisfy the second element, the inquiry as to the first element requires us to determine what type of conduct is "flagrantly lewd and offensive." Except for including exposure of the genitals for arousal or gratification as "lewd acts," N.J.S.A. 2C:14-4 contains no definition of lewdness. See N.J.S.A. 2C:14-4c. But, in discussing the historical development of the present lewdness statute, the Court has made the following observations:

The proposed Code contained two forms of lewdness. One form was called indecent exposure, defined as the exposing of the actor's genitals for arousing or sexually gratifying the actor or any person other than the actor's spouse "under circumstances in which [the actor] knows his conduct is likely to cause affront or alarm." 1 Final Report [of the New Jersey Criminal Law Revision Commission], 2C:14-5, at 63 [(1971) (Final Report)]. The indecent exposure under the proposed Code was grouped with the Chapter 14 offenses because exposure of the genitals for sexual gratification is often interpreted as threatening sexual aggression. 2 Final Report, supra, commentary to 2C:14-5, at 200-01.

 
The second form of lewdness in the proposed Code was identified as public indecency or open lewdness. It was defined as "any lewd act, which [the actor] knows is likely to be observed by others who would be affronted or alarmed." 1 Final Report, 2C:34-1, at 120. That proposed offense was generally intended to prohibit conduct that amounted to "gross flouting of community standards in respect to sexuality or nudity in public." 2 Final Report, supra, commentary to 2C:34-1, at 301.

 
Although the proposed Code did not further define lewdness, decisional law described it as "conduct of a lustful, lecherous, lascivious or libidinous nature." State v. Dorsey, 64 N.J. 428, 431 (1974). It was also described as importing "some degree of sexual aberration or impurity . . . [and] denot[ing] gross and wanton indecency in the sexual relations." State v. Brenner, 132 N.J.L. 607, 610 (E & A 1945). Blackstone defined "'open and notorious lewdness' at common law as 'some grossly scandalous and public indecency.'" Ibid. (quoting Blackstone 4 Commentaries 64).

[State v. Zeidell, supra, 154 N.J. at 428-29 (emphasis added).]

The dictionary definition of lewd is "preoccupied with sex: lustful . . . indecent: obscene . . . wicked." Webster's II New College Dictionary 631 (1999). It would clearly include masturbation in public, whether clothed or not. See Moses v. Commonwealth of Virginia, 611 S.E.2d 607 (Ct. of App. Va. 2005) (defendant's "public masturbation" constituted an obscene "display" of his "person, or the private parts thereof" even though the "display" occurred while fully clothed); People v. Darryl M., 475 N.Y.S.2d 704, 709 (N.Y. Crim. Ct. 1984) (repeatedly stroking covered erect penis in public and rubbing covered erect penis against buttocks of three females in public constitute "any other lewd act" within the context of public lewdness). Cf. also Miller v. California, 413 U.S. 15, 25, 37 L. Ed. 2d 419, 431, 93 S. Ct. 2607, 2615 (1973) (noting that patently offensive "representations or descriptions of masturbation" are "obscene").

We, of course, owe deference to the de novo factfindings by the Superior Court judge. E.g., State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Had the judge here found that defendant was masturbating in the CVS, this appeal would be more difficult to decide, although whether the record is sufficient to support such a finding beyond a reasonable doubt is questionable. But the judge did not so find, most likely because, at best, the witnesses only saw defendant rub or scratch himself in or near his groin. In this respect, we note the absence of physical indicia of masturbation. Defendant did not exhibit any facial or verbal signs. Nor was there any evidence of erection or ejaculation. At best, the State demonstrated beyond a reasonable doubt that defendant scratched, or rubbed, himself, through his front pants pocket, in his groin area. We are convinced that the mere touching or rubbing, however vigorous, of oneself near a clothed, intimate part of the body, even if in public, is not flagrantly lewd. That is to say, it is not lustful, indecent, obscene or wicked and is not a "'gross flouting of community standards . . . .'" See State v. Zeidell, supra, 154 N.J. at 429 (quoting 2 Final Report, supra, commentary to 2C:31-1 at 301).

Reversed and remanded for entry of an order vacating the judgment of conviction and for entry of judgment of acquittal.

 

Fourth-degree lewdness may also constitute a third-degree child endangerment where the actor "engages in sexual conduct which would impair or debauch the morals of a child . . . ." N.J.S.A. 2C:24-4a. See State v. Hackett, 166 N.J. 66, 76-77 (2001).

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A-1944-04T5

November 7, 2005