In what may be only the second instance, a New Jersey Municipal Court judge who has given harsh sentences to gay men convicted of lewdness in the Palisades Interstate Park, accepted a deal in which a gay man who was charged with lewdness pleaded guilty to a lesser charge of violating a park ordinance.
“The court will agree to dismiss the charge,” said Steven J. Zaben, the judge, during a June 15 hearing. “That’s all based on the fact that this defendant cannot be found guilty.”
The 41-year-old gay man pleaded guilty to being “not properly attired.” He was fined $200 and banned from the park for one year though he can use the highway that runs through the park.
The court hears low level cases and traffic violations that are committed in the park, which stretches along the Hudson River from Fort Lee in New Jersey to Bear Mountain in New York. The police force in the New Jersey section 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 lewdness cases include a roughly $1,000 fine, a five-day suspended jail sentence, two years on probation, a two-year ban from the park including use of the highway, and, in some cases, court-supervised psychiatric counseling.
The June 15 deal came after Douglas F. Doyle, the park prosecutor, told Zaben that Thomas Rossi, the detective who has made many of the lewdness arrests, had “no independent recollection” if other people were present when the defendant exposed himself on July 27, 2004.
New Jersey’s lewdness statute 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.” Doyle said that a police officer cannot be the non-consenting person.
“The state would be hard pressed to prove beyond a reasonable doubt that others were present,” Doyle said.
Diane E. Sammons, an attorney with Nagel, Rice & Mazie, a Roseland, New Jersey, law firm, who represented the gay man, showed the court a dozen pictures—of the area where the gay man exposed himself and that detailed the route the defendant and Rossi took to arrive there. Sammons said that the location was 160 to 175 feet from a marked trail.
“Plainly, it was his intent not to be seen,” Sammons said of her client.
The area was “off an unmarked path,” had a “a full canopy of vegetation,” and it was “impossible to see more than 15 or 20” feet from inside that area. In moving to that area, the defendant had a “specific intent” to avoid being seen, Sammons said. The photos were taken roughly two weeks before the hearing.
Zaben repeatedly said that this case was unusual.
“This may make this case unique,” he said. “This court will not allow this case to be a precedent... The facts of this case are peculiar to this case.”
Court staff insist that such deals have been made in the past though they cannot produce the cases. In interviews last year, defense attorneys involved in lewdness cases said that Doyle and Zaben would not make such deals.
Joseph G. Monaghan, an attorney in private practice who has represented gay men and two heterosexual couples arrested for lewdness in the park, told Gay City News that on June 8 he saw a male defendant plead to the lesser charge of not being “properly attired.”
Just before hearing the July 27, 2004 case, Zaben accepted a guilty plea to lewdness in another 2004 case and gave the man a $1,000 fine, a year on probation, and a two-year ban from the park.
“His counsel advises me that he has had no run-ins with the law,” Doyle said of the man, adding that the defendant had no prior arrests.
One heterosexual couple that Monaghan represented last year was convicted by Zaben after a 90-minute trial. The couple, who were caught having sex in their car in the park at midnight, received a far lighter sentence from Zaben than those given to gay men who briefly expose themselves.
Monaghan appealed that conviction and on October 28 of last year a higher court dismissed the lewdness charges against the couple. On April 27 of this year, Monaghan sought to have lewdness charges against the second straight couple he represents dismissed.
“We conferenced the case with the judge,” he said. “Although [the judge] did not necessarily agree with the higher court’s opinion, he properly felt bound by it, abided by it, and allowed the dismissal in the second case.”
In both cases, the couples were arrested while in their car having sex, circumstances that the higher court presumably view as giving them an expectation of privacy.
“Ultimately, in any given case, regardless of the nature of the sexual act, the issue is whether the person committing the act reasonably expected their actions to be observed by a non-consenting individual,” Monaghan said.