A South Jersey man believes he has the right to watch hardcore porn in his car while using the public W-Fi of a fast-food restaurant.

New Jersey’s courts say he can't have it his way.

David J. Lomanto, 53, was arrested back in 2014 after a woman caught him consuming the smut on his iPad while he sat in his car in the parking lot near the entrance of the eatery. He was never accused of exposing his genitals or masturbating.

A jury later found him guilty of fourth-degree communication of obscenity and obstructing a criminal investigation. The judge also found him guilty of the misdemeanor offense of disorderly conduct.

He was sentenced to a year of probation and five days in jail, which he had already served.

A two-judge appellate panel on Tuesday rejected Lomanto’s appeals on constitutional grounds, capping his exhaustive legal fight.

On the evening of Lomanto’s arrest, he had spent hours sitting in the parking lot with his window rolled all the way down looking at porn, police said.

Investigators say the Brigantine man drove into the lot in Little Egg Harbor about 6:33 p.m. on April 22, 2014. A half hour later, a woman with her son parked next to him.

While the 12-year-old was in the restaurant, the mom noticed through Lomanto's open window that he had an iPad on his lap and she noticed that it was showing a blonde woman performing oral sex on a man. She said she also saw a penis on the screen and heard moaning.

"The mother became ‘[m]ortified’ and ‘shocked’ as they lived in ‘a small town’ and she ‘[n]ever experience[ed] anything like th[at] in [her] life,’” according to the appellate decision’s summary of the case.

The woman then drove away “in shock” and later told a friend, who called police.

Cops arrived at the restaurant about 8:21 p.m. and an officer noticed the iPad and what appeared to be “an Asian girl” in a “live interaction of some sort.” When Lomanto saw the cop, he closed the window on the screen, which revealed another window showing a thumbnail menu of other performers, police said.

Lomanto refused to provide his identification or to get out of his car, police said.

Police later obtained a search warrant after telling the judge that they suspected possible child pornography or child endangerment based on the fact that they found two Hot Wheels cars and a Minnie Mouse figurine in his pocket.

He was never charged with possession of child pornography.

Police recovered numerous phones, tablets and a laptop from his car. Using a special device allowed by a warrant, police hacked into his iPad, which revealed that he had spent more than three hours looking at porn websites using the restaurant’s Wi-Fi.

Lomanto lost several motions to dismiss the charges and was eventually found guilty by an Ocean County jury following a two-day trial in May 2017.

In his appeal by the Public Defender’s Office, he argued that the obscenity law was ensnaring innocent people engaged in lawful behavior, that the law was both vague and overbroad, and that he had not publicly communicated anything.

Lomanto’s appeal argued that the law could conceivably convict people who were searching for artwork on a library computer or watching non-pornographic TV shows that used “explicit” sounds.

The appellate decision this week, however, says Lomanto’s arguments are “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,’” the judges explained.

The judges also rejected his argument that he had a right to look at porn because he was in the privacy of his car.

“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,” the appellate decision says.

The judges also disagreed that police misled the judge who issued the warrant by raising the specter of child pornography. And the judges also pointed out that the law requires drivers to provide identification to police engaged in official duties.

The appellate judges also sided with the trial court's interpretation of the disorderly conduct law, which applies to conduct "which serves no legitimate purpose" that causes “public inconvenience, annoyance or alarm" or that is "recklessly creating a risk [or a] hazardous or physically dangerous condition."

“Watching pornography in public serves no legitimate purpose,” the judges reasoned. “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.”

 

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