Palisades Park judge rejects defendant’s lewdness defense claiming police entrapment
The New Jersey judge presiding over the criminal cases of men arrested for public lewdness in Palisades Interstate Park dismissed one defendant’s explanation that he was in the park to spend his lunch break outdoors, saying that because the man is gay he went to the park for sex.
At a proceeding on June 2 in the municipal court that oversees the park, Judge Stephen J. Zaben said that the defendant “perhaps had another agenda” for being in a locale identified by law enforcement authorities as a gay cruising site where dozens of men have recently been apprehended. Indicative of the stigmatization such arrests cause, the defendant asked that his name be kept confidential out of concern for his job. The man had testified that he went to park to have his lunch, but also acknowledged in questioning that he is gay.
The court Zaben presides over hears low level offenses and traffic violations that are committed in the park, which stretches along the Hudson River from Fort Lee at the George Washington Bridge in New Jersey to Bear Mountain in New York. Last year, the park police who patrol the New Jersey section made at least 98 lewdness arrests in the park.
With roughly half of those cases completed, Zaben has a history of handing out harsh sentences that typically include a fine of roughly $1,000, a five-day suspended jail sentence, two years on probation, a two-year ban from the park including use of the highway that runs through it and, in some cases, supervised psychiatric counseling. Of the completed cases, all but one have resulted in a guilty verdict or a guilty plea.
In his June 2 verdict, the judge doubted the defendant’s assertion that he was in the park for lunch. Zaben said the defendant was there “perhaps to have some type of encounter” and said that his conclusion was supported “by virtue of the fact that he said he is gay.”
Det. Thomas Rossi, the arresting officer, said the defendant had masturbated in front of him. Zaben described this as “threatening sexual aggression.”
Defense attorneys have charged that Zaben is biased. At the June 2 trial, Hans O’Connell, an attorney with M. Goodman & Associates, a Hackensack law firm, who represented this defendant, asked, for a second time, that Zaben recuse himself.
“I think your honor has reflected an attitude that works against this defendant,” O’Connell said.
Zaben denied the motion, saying, “I’m not going to recuse myself because this court treats each case on a case by case basis. My decisions are based solely on the facts that are presented to me.”
During the trial that lasted about four-and-a-half hours, Zaben heard just two witnesses—Rossi and the defendant—who offered very different versions of the June 9, 2004 arrest.
Rossi said the defendant initiated a conversation with him, followed him down a trail in the park, and then, “He unzipped his pants, he took out his penis and he began to masturbate” using his right hand.
The defendant testified that he is left-handed.
When Douglas F. Doyle, the municipal prosecutor, asked Rossi, “Did you invite him to take his penis out of his pants?” and “Did you ask him to masturbate?” the detective responded, “No.”
The New Jersey lewdness law 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.”
Rossi reported feeling “surprise” and “shock” in response to the defendant’s actions and said, “I couldn’t believe it. It was such an open trail…
He didn’t even know who I was.”
Cross-examined by O’Connell, Rossi said he had made “over 100 arrests for lewdness” since joining the force in 2002 with “over 50” of those arrests happening in 2004. Half of all his arrests are for lewdness. In every single case, he claimed the defendants exposed themselves and masturbated. Asked how many women were among those he arrested, Rossi responded that less than 10 were.
Rossi said he was not specifically looking for lewdness violations that day, but instead patrolling for any infraction of the law. The defendant told Gay City News that he was held with at least four other men following his arrest last June.
Rossi’s memory of the arrest was spotty. He could not recall the other officer with him that day, the color of some of the defendant’s clothing and much of the conversation they had, though he recalled that when he made the arrest, the defendant said, “You entrapped me, you entrapped me.”
The defendant was more specific than Rossi during his testimony. Rossi stared at him intensely when he first pulled into the parking lot, the defendant said, and then initiated a conversation.
“He said ‘Nice day, isn’t it?’” the defendant testified. “I said “Actually, it’s hot.’ He said, ‘Why don’t you come in here where it’s shady.’”
The defendant, who is 43, said that Rossi, in his late 20s or early 30s, continued to invite him to move to a more secluded spot in the park. At that point, the defendant testified, Rossi asked. “What are you into?”
The defendant said “oral sex” and then asked Rossi about his tastes in sex, to which the officer responded, “It depends on what you got. Show me what you got… Take it out, show me what you got.”
At that point, the defendant said, he unzipped his pants and exposed his penis for “two seconds.” He was then arrested.
The defense’s argument was that Rossi’s behavior indicated that he was not someone who would be “affronted or alarmed” by the defendant’s actions and that he was not “non-consenting.” Additionally, the defense argued that because the defendant did not masturbate, his actions were not “flagrantly lewd and offensive.”
The defendant testified that after he was arrested, Rossi and he encountered another officer and Rossi asked the second officer, “Did you get that guy?” referring to another man in the park, and the second officer replied, “No, I couldn’t get him to expose himself.”
In making his ruling, Zaben had to believe either the defendant or Rossi. He chose Rossi.
“There is no reason to believe that Det. Rossi was fabricating his testimony,” Zaben said. “Does the defendant have a reason for not telling the truth? Perhaps.”
Zaben said that the defendant was charged with the violation and was facing the consequences of that. In rejecting the defense case, Zaben made frequent mention of the fact that the defendant had identified himself as “a gay man” and said that this might show an inclination toward having sex in the park.
Zaben gave the defendant a $1,000 fine, a five-day suspended jail sentence, a two-year ban from the park and a year on probation that will require him to check in four times a month. Two of those four monthly supervision requirements can be done by phone. Because the defendant lives in New York City, but works in New Jersey, the judge allowed him to use the park highway to travel to and from work, even though the park ban would otherwise preclude that.
Also on June 2, Zaben sentenced a second man who had pleaded guilty in a May 2004 lewdness case. The second man, who also asked that his name not be used, was given a $1,000 fine, a five-day suspended jail sentence, a two-year complete ban from the park and two years on probation.
Prior to his arrest, that defendant had entered counseling as well as a 12-step program for sexual compulsion. Zaben stipulated that he continue the counseling for one year, at least twice per month, and make quarterly reports on his progress. Required psychiatric counseling has been a feature of some other cases as well.
The second defendant told Gay City News that there were nine other men arrested on lewdness charges the day that he was arrested.
Gay groups were angered by the sentences Zaben imposed and his comments.
“I think that ordering a gay person to undergo psychiatric counseling is one of the most hateful actions of any government official since the old Soviet days of forced psychiatry,” said Steven Goldstein, chair of Garden State Equality, a statewide gay organization in New Jersey.
Matt Foreman, executive director of the National Gay and Lesbian Task Force and an attorney, objected to Zaben’s assuming that being gay meant the man was in the park to have sex.
“It is beyond belief that Judge Zaben would use the reality that the defendant is gay to support a finding of guilt,” Foreman wrote in an e-mail. “The sentences imposed in past cases and the fact that every single victim of this entrapment scheme has pled or been found guilty is proof of Zaben’s anti-gay animus and his unsuitability to hear any of these cases.”
Lambda Legal was similarly troubled.
“Some of the things that Gay City News reported the judge having said would be troubling, for example, the suggestion that it’s a crime to each lunch while gay,” said Susan Sommer, senior counsel at Lambda.