Halpern, Crane and Michels. The opinion of the court was delivered by Michels, J.A.D.
Defendant was found guilty by a jury of open lewdness (N.J.S.A. 2A:115-1) and impairing the morals of a minor (N.J.S.A. 2A:96-3). He appeals.
According to the State's proofs, the 11-year-old victim and her two girl friends, both minors, went to a store located in a mall in Manalapan Township in the early afternoon of May 19, 1973. While at the candy-peanut counter in the store, defendant approached them and asked where the men's room was located. The girls said they did not know Defendant told them that if they would look for the men's room he would give them a dollar. They followed him toward the rear door of the store where the men's room was located and one of the girls pointed the men's room out to defendant. Defendant informed them that he did not want to go in the bathroom but wanted to go outside. At his direction, they followed him outside. Defendant told the victim's two girl friends to go to the front of a trailer parked at a loading platform and watch to make sure nobody came. He then told the victim to follow him to the back of the trailer truck. Although frightened, she followed defendant. They walked behind the trailer where defendant ordered the victim to watch her two friends, which she did. Then, touching her arm, he ordered her to turn around. When she turned and faced him she saw that he had his pants down and had exposed himself.
Defendant was asking his infant victim a highly improper question when there was a noise such as a door opening. The frightened girl ran to her two companions and told them to "get out of here." They left the area, and when they stopped to look back they observed that defendant was gone, and some other man had come out on the platform. Thereafter defendant was identified.
Defendant now contends that his convictions should be reversed because: (1) the trial judge erred in allowing the results of the polygraph examination in evidence because Detective Valentine, who administered the polygraph examination, was not properly qualified as an expert; (2) the
judge erred in denying his motion to dismiss the counts of the indictment charging open lewdness and impairing the morals of a minor at the end of the State's case, and in denying his motion for new trial, and alternatively, (3) his convictions for open lewdness and impairing the morals of a minor merged because they constituted a single criminal episode.
Defendant contends that Detective Valentine was not properly qualified to give expert opinion as to the result of the polygraph examination, and that the trial judge erred by ruling that the written stipulation pursuant to which defendant submitted to the polygraph examination was sufficient by itself to allow the testimony of the examiner without a specific finding that he was in fact a qualified expert.*fn1 [136 NJSuper Page 407] We are in accord with the principle that the trial judge must make a finding that the examiner is qualified and the test administered in accordance with established polygraph techniques before the results of a polygraph examination taken pursuant to stipulation of admissibility may be introduced in evidence. See State v. McDavitt , 62 N.J. 36, 46 (1972); State v. Valdez , 91 Ariz. 274, 371 P. 2d 894, 900 (Sup. Ct. 1962). See also, Annotation, "Admissibility Of Lie Detector Test Taken Upon Stipulation That The Result Will Be Admissible in Evidence," 53 A.L.R. 3d 1005 (1973). We disagree, however, with defendant's contention that the trial judge failed to make a finding that the examiner was qualified and relied solely upon the stipulation in overruling defendant's objection to the polygraph evidence. A fair reading of the transcript reveals that at the conclusion of a lengthy and detailed voir dire examination of Detective Valentine's qualifications as a polygraph
expert, the trial judge overruled defendant's objection to the detective's opinion testimony on the ground that he was not qualified as a polygraph expert. While the trial judge did not expressly state that the detective was qualified, it can reasonably be implied from the ruling "The objection is overruled" that he found the detective sufficiently qualified to permit him to testify as an expert.
Even assuming that there is merit in defendant's argument that the trial judge grounded his ruling solely on the basis of the written stipulation of admissibility (which is not supported by the record) and therefore failed to make a finding as to the detective's qualifications (as the State now concedes), we do not deem the failure to do so sufficient to warrant a reversal of defendant's conviction or remand to the trial judge to make a specific finding on this issue. Rather, we shall, in the interest of justice, exercise our original jurisdiction and determine the qualifications of Detective Valentine on the basis of the record before us in order to completely determine the issues raised on this appeal. See N.J. Const. (1947), Art. VI, § V, par. 3; R. 2:10-5. See also, Graybar Electric Co., Inc. v. Manufacturers Cas. Co. , 21 N.J. 517, 523 (1956); City of Asbury Park v. Civil Service Dept. , 17 N.J. 419, 423 (1955). Cf., State v. Yough , 49 N.J. 587, 596 (1967). Our study ...