On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2011-008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Guadagno.
Defendant appeals from his conviction for lewdness, N.J.S.A. 2C:14-4(a), a disorderly persons offense. We affirm.
Defendant was arrested in South Mountain Reservation (Reservation) by Essex County Sheriff's Officer Edward Esposito, who was acting in an undercover capacity. At the trial in municipal court, defendant and Esposito gave different versions of the events leading up to that arrest.
Esposito testified that he had been assigned to patrol county parks in response to reports of lewd acts and sexual offenses. At approximately 6:55 p.m. on May 26, 2010, Esposito left an unmarked vehicle in the Reservation while another sheriff's officer maintained a surveillance post. It was still daylight, and approximately five to ten people were in the immediate area. Esposito testified that he walked north on a dirt trail and noticed that defendant was following him, approximately twenty to thirty feet behind. Esposito stopped. No words were spoken. Esposito testified that defendant then "pulled out his penis and masturbated his erect penis." Esposito placed defendant under arrest.
Defendant testified that Esposito approached him in the park and struck up a conversation with him. Defendant gave the following version of what happened next:
He was sticking his tongue out looking at me. And every time I look at him, he turn his face. Then from there, I told him that it was - that it was a public place. And we went - he say, walk with me. We walked down the trail, and then we went down further, like, deep in the forest. There was no people around me. There was nobody around us.
Defendant denied exposing his genitals to Esposito prior to their conversation. In response to questions whether he put his hands on his genitals in a "masturbatory action[,]" and whether his genitals were exposed, defendant answered, "Well, I was touching myself[,]" and "I wasn't even looking at it."
The municipal court judge made the following determination regarding the credibility of the two witnesses:
I was very impressed by the officer's testimony. He was very, very - as far as I was concerned I remember very logical in his testimony, very believable. . . .
There's nothing that I find from Mr. Alvarez's testimony that - nothing believable that could offset the officer's testimony. I believe that Mr. Alvarez's testimony was just a matter of trying to alibi his way out of this situation . . . .
The judge found defendant guilty of violating N.J.S.A. 2C:14-4. Defendant appealed. The Law Division judge agreed with the municipal court judge's assessment of credibility. He concluded that the State had proven defendant's guilt of lewdness beyond a reasonable doubt and sentenced him to a fine of $1000, a Violent Crimes Compensation Board ...