NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is lim ited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5273-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID J. LOMANTO,
Defendant-Appellant.
______________________________
Submitted April 30, 2019 – Decided October 15, 2019
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 15-04-
0776.
Joseph E. Krakora, Public Defender, attorney for
appellant (Amira Rahman Scurato, Designated
Counsel, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; William Kyle
Meighan, Senior Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
ROTHSTADT, J.A.D.
Defendant David J. Lomanto appeals from a judgment of conviction that
the Law Division entered after a jury found him guilty of fourth-degree public
communication of obscenity, N.J.S.A. 2C:34-4(b), and obstructing a criminal
investigation, N.J.S.A. 2C:29-1. He also challenges the trial judge finding him
guilty of the petty disorderly persons offense of disorderly conduct, N.J.S.A.
2C:33-2(a)(2). Defendant's convictions arose from his arrest after a woman
observed him watching pornography one evening while he was sitting in his
open-windowed vehicle at a fast food restaurant's parking lot. On appeal,
defendant challenges the constitutionality of the obscenity statute, the trial
judge's denial of his suppression motion, and the sufficiency of the evidence
supporting his convictions for obstruction and disorderly conduct. For the
reasons that follow, we affirm.
I.
The facts developed at trial are summarized as follows. On April 22,
2014, at 6:33 p.m., defendant parked his car in a parking space near the front
entrance of the fast food restaurant and shortly thereafter, he lowered the
vehicle's driver-side window all the way down.
A-5273-16T4
2
Approximately a half-hour later, a mother, with her twelve-year old son
in the car, parked next to defendant. After parking, the boy exited his mother's
vehicle and headed towards the restaurant, where he was grabbing a meal
before his basketball practice.
While the boy was in the restaurant, the mother noticed defendant had
"an electronic device on his steering wheel" that "looked like an iPad." At the
time, while her vehicle's windows were slightly lowered, the mother looked at
defendant's iPad from inside her car and noticed "there was . . . porn going on
the video." Specifically, she saw a "woman with blond hair" performing "oral
sex" on a man and then "having sex . . . after that." She also "heard moaning
on the video" and during depiction of the oral sex, the mother "saw [a] penis."
The mother became "[m]ortified" and "shocked" as they lived in "a small
town" and she "[n]ever experienc[ed] anything like th[at] in [her] life."
Approximately seven minutes after he went into the restaurant, the boy
returned to his mother's car. There was no evidence that the boy saw or heard
any pornography.
After her son entered the car, the mother immediately drove out of the
parking lot without contacting the police because she "was in shock."
A-5273-16T4
3
However, after arriving at her son's basketball practice, the mother shared her
observations with a friend of hers. That friend contacted a local police officer.
After receiving information about defendant’s location, his car, and his
alleged activities, the reporting officer headed to the restaurant to respond and
relayed information about defendant over his radio to other officers. In
notifying the other officers, the reporting officer stated there was "a suspicious
vehicle in the [restaurant's] parking lot that had been there for an extended
period of time." A local canine police officer also responded to the parking lot
where the reporting officer met her.
When the officers arrived at approximately 8:21 p.m., defendant was
still parked at the location and his vehicle's windows were all the way down.
The canine officer parked behind defendant's vehicle, which prevented him
from being able to drive away. According to the officer, when she proceeded
towards the driver-side of defendant's vehicle, she saw an electronic device
"propped up on . . . the steering wheel, and on the screen appeared to be an
Asian girl covered -- sort of pulling a white sheet or something over herself."
She observed what "appeared to be . . . a live interaction of some sort."
When the officer reached defendant, who remained seated in his vehicle,
defendant asked, "what’s the problem?" The officer "identified herself and . . .
A-5273-16T4
4
explained . . . that [she] was approaching him" because she "had received a
complaint." Defendant then quickly closed out of the screen displayed on his
device. At that point, the officer observed "behind [the iPad's] screen was
another screen that had girls or women," but the officer "wasn't sure" as they
looked "very similar, but a bunch of different squares . . . you could choose.
And they all appeared to have . . . live interaction going on, [as] you could
choose which one."
The officer asked defendant "for his identification," which he refused to
provide to her. According to the officer, she asked for the identification "[j]ust
to conduct the investigation to see if there was some sort of crime being
committed or . . . just to investigate the complaint that [she] received." The
officer "asked [defendant] repeatedly for identification, . . . he began saying
that he doesn’t have to provide it, [and] that . . . his rights were being
violated." "[W]hile verbalizing that he wasn't going to provide . . . any of his
identifying information," defendant "reached around in the vehicle" toward
"the rear of the center console."
When defendant repeatedly refused to provide his identification, the
officer finally asked defendant to exit the vehicle, which he did not do
voluntarily until the officer opened his vehicle's door. At that point, the
A-5273-16T4
5
officer placed defendant under arrest for obstruction and searched him.1 The
reporting officer then proceeded to secure the vehicle, raised the windows, and
removed the key.
Defendant's vehicle was later impounded and searched pursuant to a
warrant. The affidavit supporting the warrant stated that there was probable
cause to believe defendant's electronic devices contained evidence associated
with child pornography and endangering the welfare of children based on
defendant's viewing of pornography at a fast food restaurant in front of a
minor, the recovery of kids' toys from his person, and the appearance of young
girls on his iPad when the officer approached his car. Pursuant to that search
warrant, the police recovered an iPad and cell phone from the front seat, three
cell phones in the glove compartment, another cell phone from the rear seat,
and a second iPad and a laptop from the trunk of defendant's vehicle.
A police expert in computer forensics unsuccessfully attempted to access
the contents of the iPad defendant was looking at as it was locked with a
passcode. However, in 2016 the officer secured a search warrant to unlock the
iPad with a device. In his affidavit for the search warrant, the officer stated he
1
The officer recovered two Hot Wheels cars and a Minnie Mouse figurine
from defendant's pocket, but those items were not presented to the jury.
A-5273-16T4
6
had probable cause to believe the iPad contained evidence that pertained to
public indecency and particularly public communication of obscenity. After
the application was granted, the officer extracted data from the iPad that
showed between 6:30 p.m. to 10:00 p.m. on April 22, 2014, defendant was
browsing one or more pornography websites through the restaurant's wifi
connections. In addition, the officer extracted Skype conversation logs
between defendant, whose username was "hunkofburninglove," and several
other persons with usernames of "Sharen_cute," "Marie.aguilar84," and
"Maureen1512," who exchanged flirtatious messages with defendant.
Defendant was charged in an April 16, 2015 indictment with one count
of each of the two crimes that the jury later found him guilty of committing
and in a summons complaint with the petty disorderly persons offense, which
the trial judge found him guilty of committing. Defendant filed a motion to
dismiss the indictment on August 13, 2015. At an October 2, 2015 hearing,
defendant argued that the public communication of obscenity statute was
"unconstitutionally vague in that the mens rea element of the crime is not
defined." Defendant also challenged whether he obstructed an investigation.
The judge denied the motion. Defendant filed a second motion to dismiss the
indictment on April 28, 2016, and cited a proposed but un-adopted amendment
A-5273-16T4
7
to the public communication of obscenity statute to establish that the statute
did not apply to conduct inside a motor vehicle. At a June 9, 2016 hearing, the
judge treated this motion as one for reconsideration of her earlier order
"pursuant to either Rule 1:7-4 or Rule 4:49-2." The judge held that the motion
was "procedurally barred [under Rule 1:7-4(b)] because defendant filed the
motion 270 days after th[e] court's initial decision on the motion to dismiss the
indictment." Further, the judge held that "even if the motion was timely filed,
defendant's motion would still fail" because the bill amending the statute
sought only "to clarify that a person commits a crime of the fourth-degree if he
publicly displays obscene material in or on a motor vehicle he owns, operates
or leases." The judge found "the purpose of the proposed bill is not to create a
new basis for the application of the law or to add a new basis, but to affirm, in
th[e] [c]ourt's opinion unnecessarily, that it applies to vehicles."
Defendant filed a motion to suppress the introduction into evidence of
his iPad on April 4, 2017. He argued that the State lacked "probable cause [to]
issu[e] a search warrant of [his] vehicle and that" the seizure of all items from
his vehicle, "including [his] iPad," violated "his Fourth Amendment rights."
The judge denied the motion and found no errors in the issuance or execution
of the search warrant.
A-5273-16T4
8
A two-day trial began on May 22, 2017. After the State rested,
defendant moved for a judgment of acquittal. The trial judge denied the
motion.
The jury convicted defendant on both counts of the indictment on May
23, 2017. Prior to sentencing, on July 14, 2017, the trial judge found
defendant guilty of disorderly conduct and merged it with the conviction for
public communication of obscenity. The judge also denied defendant's motion
for a new trial and then sentenced defendant to two concurrent one-year terms
of probation and five days in county jail, which he had already served. This
appeal followed.
On appeal, defendant argues the following points:
POINT I
N.J.S.A. 2C:34-4 (PUBLIC COMMUNICATION OF
OBSCENITY) IS UNCONSTITUTIONAL.
A. THE STATUTORY DEFINITION OF
'PUBLICLY COMMUNICATES' IN N.J.S.A. 2C:34-
4a IS OVERBROAD AS IT ENSNARES INNOCENT
INDIVIDUALS ENGAGED IN LAWFUL
BEHAVIOR AND IMPERMISSIBLY
CRIMINALIZES CONSTITUTIONALLY
PROTECTED CONDUCT.
B. DEFENDANT DID NOT 'PUBLICLY
COMMUNICATE' ANYTHING FROM INSIDE HIS
CLOSED CAR IN WHICH HE HAS
A-5273-16T4
9
CONSTITUTIONALLY PROTECTED PRIVACY
INTERESTS.
POINT II
THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS THE WARRANTLESS
SEARCH AND THE TWO SUBSEQUENT
SEARCHES WITH WARRANTS.
A. THE LEGAL STANDARD FOR A
MOTION TO SUPPRESS.
B. DEFENDANT AND HIS IPAD WERE
ILLEGALLY SEIZED.
C. NO PROBABLE CAUSE EXHISTED
FOR THE ISSUANCE OF THE SEARCH
WARRANTS.
POINT III
THE STATE DID NOT PROVE DEFENDANT WAS
GUILTY OF OBSTRUCTION UNDER N.J.S.A.
2C:29-1.
POINT IV
THE JUDGE ERRED IN FINDING DEFENDANT
GUILTY OF THE PETTY DISORDERLY PERSONS
OFFENSE
II.
A.
We turn first to defendant's constitutional challenge to his obscenity law
conviction, which he only partially raised before the trial judge in his
A-5273-16T4
10
unsuccessful motion to dismiss the indictment. Although defendant raised a
challenge based on the statute being vague, on appeal he also couches his
argument in terms of the statute being overbroad, which he did not raise at
trial. The overbreadth and void-for-vagueness doctrines are overlapping, but
not identical. See In re Hinds, 90 N.J. 604, 617-18 (1982). The difference is
"vagueness implicates notions of procedural due process as to the fairness and
adequacy of warning" for what is and what is not criminal, while "overbreadth
involves substantive due process considerations concerning excessive
governmental intrusion into protected areas." Id. at 618.
Generally, we will decline to consider arguments not raised before the
trial judge, unless such an issue concerns substantial public interest. See State
v. Robinson, 200 N.J. 1, 20-22 (2009). To the extent defendant did not raise at
trial any constitutional argument that he now argues, we choose to review his
arguments because the constitutional challenge asserted potentially implicates
a substantial public interest.
In our review, we assess a trial judge's decision denying a defendant's
motion to dismiss an indictment for an abuse of discretion. State v. Saavedra,
222 N.J. 39, 55 (2015). However, we decide legal issues such as those
presented here de novo. See State v. Reid, 456 N.J. Super. 44, 57 (App. Div.
A-5273-16T4
11
2018). Whether defendant's indictment was based upon an unconstitutional
statute is "an issue of law subject to de novo review." State v. Drake, 444 N.J.
Super. 265, 271 (App. Div. 2016) (citing State v. Pomianek, 221 N.J. 66, 80
(2015)); accord Reid, 456 N.J. Super. at 57.
B.
Although defendant now couches both arguments in terms of the statute
being overbroad, his contention is actually that the statute is vague "with
respect to deliberate conduct." According to defendant, although "the State
has a legitimate interest in protecting deliberate publishing of obscene
material, it should do so in a way which does not ensnare individuals who
privately view same, or those who inadvertently display pop-ups or other
snippets while navigating the internet." By way of example, defendant
explains that if an innocent, inadvertent search on a public library's computer
reveals "[a]rtistic sculptures, paintings, or videos [they] might fall into
criminal contexts, particularly if someone complains," as would "[t]he
'explicit' sounds supposedly heard from [his] car[, which are] often used
harmlessly in non-pornographic regular television shows." Because "the
statute may unconstitutionally catch and criminalize those 'obscenities' as
A-5273-16T4
12
well," defendant contends the statute is invalid. We find no merit to his
contentions.
"'Vagueness []is essentially a procedural due process concept grounded
in notions of fair play." Saavedra, 222 N.J. at 68 (quoting State v. Lee, 96 N.J.
156, 165 (1984)). Criminal statutes that are impermissibly vague are
unconstitutional. State v. Afanador, 134 N.J. 162, 170 (1993) (quoting Town
Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1993)). "A penal statute should
not become a trap for a person of ordinary intelligence acting in good faith , but
rather should give fair notice of conduct that is forbidden." Lee, 96 N.J. at
166.
Clear and comprehensible legislation is a fundamental
prerequisite of due process of law, especially where
criminal responsibility is involved. Vague laws are
unconstitutional . . . because unclear or
incomprehensible legislation places both citizens and
law enforcement officials in an untenable position.
Vague laws deprive citizens of adequate notice of
proscribed conduct, and fail to provide officials with
guidelines sufficient to prevent arbitrary and erratic
enforcement.
[Afanador, 134 N.J. at 170 (quoting Town
Tobacconist, 94 N.J. at 118).]
"A law is void as a matter of due process if it is so vague that persons 'of
common intelligence must necessarily guess at its meaning and differ as to its
A-5273-16T4
13
application.'" Town Tobacconist, 94 N.J. at 118 (quoting Connally v. Gen.
Constr. Co., 269 U.S. 385 (1926)). Thus, a criminal statute is
unconstitutionally vague and violates due process if it fails "to provide notice
and warning to an individual that his or her conduct could subject that
individual to criminal or quasi-criminal prosecution." State v. Hoffman, 149
N.J. 564, 581 (1997) (citing Screws v. United States, 325 U.S. 91, 101-02
(1945)). "To the extent that there is an unresolved ambiguity in the language
of the . . . statute, the rule of lenity . . . cautions against reading the law against
a defendant." State v. Young, 233 N.J. 345, 348 (2018) (quoting State v.
Sumulikoski, 221 N.J. 93, 110 (2015)).
We conclude there was nothing vague or ambiguous about defendant's
indictment for violating N.J.S.A. 2C:34-4(b). The statute provides that "[a]
person who knowingly publicly communicates obscene material, as defined in
section 2C:34-32 or causes or permits it to be publicly communicated on
2
N.J.S.A. 2C:34-3, "Obscenity for persons under 18," defines "[o]bscene
material" as:
any description, narrative account, display, [or]
depiction of a specified anatomical area or specified
sexual activity contained in, or consisting of, a picture
or other representation, publication, sound recording,
live performance or film, which by means of posing,
(continued)
A-5273-16T4
14
property he owns or leases or operates is guilty of a crime of the fourth
degree." N.J.S.A. 2C:34-4(b) (emphasis added). Proof that an individual
made a "[p]ublic communication of obscene material" gives rise to a
presumption that the individual did it "knowingly." N.J.S.A. 2C:34-4(c).3 In
the context of this offense, "knowingly" means defendant "had knowledge of
the character and content of the material" he "communicated publicly." Model
Jury Charge (Criminal), "Public Communication of Obscenity" (N.J.S.A.
2C:34-4(b)) (approved June 22, 1982). Additionally, in N.J.S.A. 2C:2-2(b)(2),
[a] person acts knowingly with respect to the nature of
his conduct or the attendant circumstances if he is
aware that his conduct is of that nature, or that such
circumstances exist, or he is aware of a high
probability of their existence. A person acts
(continued)
composition, format or animated sensual details, emits
sensuality with sufficient impact to concentrate
prurient interest on the area or activity.
[N.J.S.A. 2C:34-3(a)(1).]
3
The presumption is actually a permissible inference a jury can draw "if [it]
find[s] beyond a reasonable doubt that [a defendant] publicly communicated
obscene material." Model Jury Charge (Criminal), "Public Communication of
Obscenity" (N.J.S.A. 2C:34-4(b)) (approved June 22, 1982). The jury is "not
required to make th[e] inference" unless it determines "the facts and
circumstances shown by the evidence . . . warrant any inference which the law
permits the jury to draw," while keeping in mind that the burden of proof never
shifts from the State to a defendant. Ibid.
A-5273-16T4
15
knowingly with respect to a result of his conduct if he
is aware that it is practically certain that his conduct
will cause such a result.
[N.J.S.A. 2C:2-2(b)(2).]
N.J.S.A. 2C:34-4(a), defines "publicly communicate" as follows:
"Publicly communicate" means to display, post,
exhibit, give away or vocalize material in such a
way that its character and content may be readily
and distinctly perceived by the public by normal
unaided vision or hearing when viewing or hearing
it in, on or from a public street, road, thoroughfare,
recreation or shopping center or area, public
transportation facility or vehicle used for public
transportation.
[N.J.S.A. 2C:34-4(a).]
Defendant's contentions that the statute ensnares individuals who
inadvertently communicate obscene material while engaged in a private
viewing of those materials is without merit. The statute clearly only makes it a
crime for those who intentionally view pornography in public in a manner that
makes the material perceivable to others "by normal unaided vision or
hearing." Ibid. The statute does not criminalize an unintentional inadvertent
display and there is nothing vague about its language. The allegation that
defendant sat in a restaurant's parking lot watching and listening to obscene
material in a manner that permitted anyone near his automobile to see and hear
A-5273-16T4
16
the contents of what he was viewing and listening to was clearly prohibited by
the statute.
We are not persuaded by defendant's additional argument that the
statute's vagueness was established by the Legislature having rejected
proposed amendments to the statute on several occasions. These proposed
amendments expressed a prohibition on displaying obscene videos from an
automobile’s video displays, if visible to those outside the vehicle.
Defendant’s argument that the statute, in its current form, did not contemplate
displaying obscene material from automobiles is without merit. We conclude
that the Legislature determined that no such amendment was necessary, as the
current language of the statute incorporates such activity. "[W]hen a statute's
language appears clear, 'we need delve no deeper than the act's literal terms to
divine the Legislature's intent.'" State v. Gandhi, 201 N.J. 161, 180 (2010)
(quoting State v. Thomas, 166 N.J. 560, 567 (2001)). Only when we find a
statute is ambiguous do we look at "a variety of sources, 'such as the statute's
purpose, legislative history, and statutory context to ascertain the legislature's
intent.'" In re J.S., 444 N.J. Super. 303, 308 (2016) (quoting Thomas, 166 N.J.
at 567).
A-5273-16T4
17
We also reject defendant's argument that somehow his public
communication of obscene material was protected because he was viewing it in
the privacy of his car, even though the car was parked in the restaurant's
parking lot with its windows lowered, and the restaurant was being frequented
by patrons at dinner time. While our courts have repeatedly acknowledged an
individual's privacy interest in the contents of their automobile, we have never
extended the zone of privacy to what occurs inside a car that is in plain view.
See State v. Terry, 232 N.J. 218, 233 (2018) ("[M]otorists have a lesser
expectation of privacy in their vehicles when driven on our roadways."); see
also id. at 238 ("[A]n officer may seize any contraband [from an automobile]
within his [or her] plain view."). Defendant's constitutional challenge is
without any basis.
III.
Next, we consider defendant's appeal from the denial of his suppression
motion challenging the warrantless search conducted after he was arrested at
the scene and the later searches of his car and his iPad pursuant to warrants.
The trial judge denied his motion after finding the officer formed a reasonable
suspicion to believe that a crime had been or was being committed that
A-5273-16T4
18
justified her stop and search of defendant, after confirming, through
observation, what was told to her.
Defendant maintains his being stopped by the officer in reliance upon a
"hunch," which was derived from what amounted to "triple hearsay," was
unconstitutional and warranted the suppression of all evidence that was
thereafter recovered from him and his vehicle. He states there was no
"reasonable suspicion" or "probable cause" to believe he committed a crime.
Further, defendant argues that "[t]he affidavits in support of the search
warrants did not establish probable cause," and that "substantial omissions
occurred which misled the court[ in] issu[ing] the warrants." According to
defendant, because the first affidavit stated the police had probable cause to
believe he was engaged in child pornography or endangering the welfare of a
child, even though he was not subsequently arrested for those charges, "[t]hat
alone misled the judges who signed the warrants." We disagree.
In our review of the denial of a suppression motion we "uphold the
factual findings underlying the trial court's decision, provided that those
findings are 'supported by sufficient credible evidence in the record.'" State v.
Sencion, 454 N.J. Super. 25, 31 (App. Div. 2018) (quoting State v. Boone, 232
N.J. 417, 425-26 (2017)). We defer to the judge's factual findings "because
A-5273-16T4
19
the motion judge, unlike an appellate court, has the 'opportunity to hear and
see the witnesses and to have the "feel" of the case, which a reviewing court
cannot enjoy.'" State v. Gonzales, 227 N.J. 77, 101 (2016) (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). We also defer to the court's credibility
findings. See State v. Locurto, 157 N.J. 463, 472 (1999). However, "we owe
no deference . . . to conclusions of law made by trial courts in suppression
decisions, which we instead review de novo." Sencion, 454 N.J. Super. at 31-
32. Applying that standard here, we conclude that defendant's contention
regarding his stop being illegal is without merit.
"To be lawful, an automobile stop 'must be based on reasonable and
articulable suspicion that an offense . . . has been or is being committed.'"
State v. Bacome, 228 N.J. 94, 103 (2017) (quoting State v. Carty, 170 N.J.
632, 639-40 (2002)); accord Terry v. Ohio, 392 U.S. 1, 21 (1968). Whether a
reasonable and articulable suspicion exists to perform an investigatory stop
depends upon the totality of the circumstances. State v. Pineiro, 181 N.J. 13,
22 (2004). "The [required] 'articulable reasons' or 'particularized suspicion' of
criminal activity must be based upon the law enforcement officer's assessment
of the totality of circumstances with which he is faced" when "in view of [the]
A-5273-16T4
20
officer's experience and knowledge, taken together with rational inferences
drawn from those facts." State v. Davis, 104 N.J. 490, 504 (1986).
We agree with the trial judge's conclusion that the officer possessed the
proper level of suspicion before she effectuated her stop of defendant based
upon her having had received a description of defendant's vehicle, its location,
and a report of his alleged criminal activity. This was immediately confirmed
through the officer's observations upon her arrival. Her independent
corroboration of what she was told was more than adequate to support her
suspicions. State v. Birkenmeier, 185 N.J. 552, 562 (2006) ("[T]he
confidential informant's tip, once corroborated by the observations made by
the police, provided sufficient reasonable suspicion to detain and conduct an
investigatory stop of defendant."); State v. Smith, 155 N.J. 83, 94 (1998)
("[T]he nature and details revealed in the tip may imply that the informant's
knowledge of the alleged criminal activity is derived from a trustworthy
source.").
The same personal observations by the officer justified defendant's
detention and the warrants being issued, even though the officer did not
directly communicate with a reliable informant as argued by defendant. See
State v. Marshall, 199 N.J. 602, 612 (2009) ("A search executed pursuant to a
A-5273-16T4
21
warrant is presumed valid."); see also State v. Mercedes, 233 N.J. 152, 178
(2018) ("[T]he reliability of an informant’s tip [should] be analyzed under the
totality of the circumstances," while considering the informant’s "veracity and
basis of knowledge."). The fact that defendant was later charged with a crime
that was different than the one the officer suspected he committed or was
about to commit, does not change the validity of the stop and the searches that
followed. Defendant's motion to suppress was properly denied.
IV.
We turn our attention to defendant's contention that the trial judge erred
by denying his motion for a new trial as to his conviction for obstruction.
According to defendant, the trial judge's reliance upon defendant's momentary
refusal to turn over his driver's license to the officer and leave his car when
directed to do so was not sufficient evidence of obstruction. We are not
persuaded by this contention.
Under Rule 3:20-1, "[t]he trial judge on defendant's motion may grant
the defendant a new trial if required in the interest of justice." The trial judge,
however, must not set aside a jury verdict "as against the weight of the
evidence unless, having given due regard to the opportunity of the jury to pass
upon the credibility of the witnesses, it clearly and convincingly appears that
A-5273-16T4
22
there was a manifest denial of justice under the law." R. 3:20-1; accord State
v. Labrutto, 114 N.J. 187, 207 (1989). A judge's decision on such an
application is discretionary and entitled to great deference. State v. Brooks,
366 N.J. Super. 447, 454 (App. Div. 2004). We apply the same standard in
reviewing a trial court's decision on a new trial motion. Dolson v. Anastasia,
55 N.J. 2, 7 (1969). In our review, we must "weigh[] heavily" the judge's
"views of credibility of witnesses, their demeanor, and [the judge's] general
'feel of the case.'" State v. Sims, 65 N.J. 359, 373 (1974); accord State v.
Brown, 118 N.J. 595, 604 (1990).
Obstruction of the administration of law occurs when a person
"purposely obstructs, impairs or perverts the administration of law or other
governmental function or prevents or attempts to prevent a public servant from
lawfully performing an official function by means of flight, intimidation,
force, violence, or physical interference or obstacle, or by means of any
independently unlawful act." N.J.S.A. 2C:29-1(a). The statute requires an
"affirmative" act of "interference with governmental functions." Ibid.; see
State v. Fede, 237 N.J. 138, 148 (2019). "To violate N.J.S.A. 2C:29-1(a), a
person must not only 'purposely obstruct[], impair[] or pervert[] the
administration of law' but must do so through one of the specifically
A-5273-16T4
23
enumerated acts in the statute, through 'physical interference or obstacle' or
through an 'independently unlawful act.'" Fede, 237 N.J. at 148 (quoting
N.J.S.A. 2C:29-1(a)). "[C]riminal liability under N.J.S.A. 2C:29-1 requires an
affirmative act or some affirmative interference." Id. at 149.
The evidence in this case established that defendant both physically
interfered with the officer's investigation and committed an independent
unlawful act. First, when the officer confronted defendant, he immediately
attempted to hide his actions by quickly closing out of the screens he was
viewing on his iPad. Second, when asked to exit his vehicle he failed to
respond until the officer opened the car's door. Third and significantly, he
committed an independent offense when he refused to turn over his driver's
license. See N.J.S.A. 39:3-29 (requiring a driver to "exhibit his driver's
license . . . when requested so to do by a police officer . . . while in the
performance of the duties of his office"); see also State v. Perlstein, 206 N.J.
Super. 246, 252-53 (App. Div. 1985) (explaining that a vehicle operator's
purposeful failure to provide identification constitutes an "independent[]
unlawful act[]" for purposes of the obstruction statute); see also State v.
Wysocki, 166 N.J. Super. 137, 142 (App. Div. 1979) (explaining "[t]he
propriety of" a request for identification from a driver "may be rested on
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circumstances apart from the statute regulating the operation of motor
vehicles").4
We conclude the evidence was sufficient to permit a rational juror to
find defendant guilty beyond a reasonable doubt. The judge, therefore, did not
err in denying the motion for a new trial.
V.
We reach a similar conclusion as to defendant's last argument about the
insufficiency of the evidence that the trial judge relied upon in finding him
guilty of the petty disorderly offense of disorderly conduct. According to
defendant, the judge's reliance that either the mother or her son saw or heard
pornography emanating from defendant's iPad was not supported by the
evidence. We disagree.
N.J.S.A. 2C:33-2 provides that:
A person is guilty of a petty disorderly persons
offense, if with purpose to cause public
inconvenience, annoyance or alarm, or recklessly
creating a risk thereof he . . . [c]reates a hazardous or
4
We find defendant's reliance on the Court's opinion in Terry to be inapposite.
In that case, the Court explained the circumstances under which police could
search an automobile to look for ownership documents—such as a
registration—to confirm that a car was not stolen. Terry, 232 N.J. at 242-44.
The circumstances here are unrelated to those in Terry.
A-5273-16T4
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physically dangerous condition by any act which
serves no legitimate purpose of the actor.
[N.J.S.A. 2C:33-2(a)(2).]
Here, the facts that support a conviction of public communication of
obscenity illustrate a finding that defendant recklessly created a risk of public
inconvenience, annoyance, or alarm by creating a hazardous condition through
an act serving no legitimate purpose. Watching pornography in public serves
no legitimate purpose. Doing so with one's window's down, and at a
restaurant's busy parking lot in full view of families, recklessly exposed
pornography to young children which, under the circumstances, was a
hazardous condition. There was more than sufficient credible evidence for the
judge to rely upon.
Affirmed.
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