A state appeals court upheld the criminal conviction of a man for public communication of obscenity after he was arrested for viewing pornography in his car parked outside a restaurant with the windows rolled down.

The appeal contended that the state law under which the defendant was convicted is unconstitutional, arguing that he didn't publicly communicate anything.

The defendant, David Lomanto, also challenged the sufficiency of the evidence supporting his convictions and how it was obtained, including the seizure of a tablet device attached to his steering wheel on which he was allegedly viewing porn.

He also contended that his conduct didn't amount to a disorderly persons offense.

The Appellate Division rejected each point.

"Here, the facts that support a conviction of public communication of obscenity illustrate a finding that defendant recklessly created a risk of public inconvenience, annoyance, or alarm by creating a hazardous condition through an act serving no legitimate purpose," said Appellate Division Judges Arnold Natali and Garry Rothstadt in a per curiam decision Tuesday. "Watching pornography in public serves no legitimate purpose.

"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," wrote the judges. "There was more than sufficient credible evidence for the judge to rely upon."

The case was on appeal from Ocean County Superior Court.

Amira Scurato of Scurato Law in Princeton, designated counsel of the New Jersey Office of the Public Defender, represents Lomanto. Reached by phone, Scurato said, "We are petitioning to the New Jersey Supreme Court, because I think the issue is significant."

William Kyle Meighan, senior assistant prosecutor with the Ocean County Prosecutor's Office, represented the state. "We feel it was the correct decision," Meighan said in a phone call. "The defense argued that the statute was void for vagueness and it would entrap individuals into publicly displaying pornography. We argued that was not the case because the statute requires that it be done knowingly, and the statute was neither vague nor overbroad."

According to the decision, at around 6:30 p.m. on April 22, 2014, Lomanto—of Brigantine at the time, and currently age 53, according to electronic court records—was viewing pornography while he was sitting in his open-windowed vehicle at a fast-food restaurant's parking lot. He was seen by a mother accompanied by her 12-year-old son who pulled into the lot and parked next to Lomanto. The decision didn't name the location of the restaurant.

After her son exited their car and entered the restaurant, the mother noticed Lomanto had "an electronic device on his steering wheel" on which pornographic images were depicted, according to the decision.

The woman described images of oral sex and other sex acts, as well as moaning sounds emanating from the device, the court noted.

After her son returned with his meal order to the vehicle, the mother and son immediately drove out of the parking lot. It was after arriving at her son's basketball practice that the woman said she confided in a friend of what she saw, and that friend contacted police, according to the decision.

When police arrived at the restaurant parking lot at approximately 8:21 p.m., Lomanto was still parked there with his vehicle's windows rolled all the way down. One of the officers saw a tablet attached to the steering wheel with pornography being shown, according to the decision.

An officer told Lomanto about the complaint against him, and he quickly closed out of the screen.

Lomanto refused the officer's repeated requests for identification, and when the officer finally asked him to exit the vehicle, she placed him under arrest for obstruction and searched him, after which Lomanto's vehicle was impounded and searched pursuant to a warrant, the decision said.

The affidavit supporting the warrant said probable cause was based on possible evidence of child-related offenses, though Lomanto ultimately wasn't charged with any such offenses. Although in 2016, the officer secured a search warrant to unlock Lomanto's iPad with a device and extracted data from it that showed Lomanto did browse one or more pornography websites through the restaurant's wireless internet connections on April 22, 2014, from 6:30 to 10 p.m., the decision said.

Lomanto was charged in an April 2015 indictment with one count each of fourth-degree public communication of obscenity, N.J.S.A. 2C:34-4(b), and obstructing a criminal investigation, N.J.S.A. 2C:29-1, and in a summons complaint with a petty disorderly persons offense.

Lomanto then filed a motion to dismiss the indictment, arguing that the public communication of obscenity statute was "unconstitutionally vague." The judge denied the motion.

Lomanto filed a second motion to dismiss the indictment on April 28, 2016, and cited a proposed amendment to the public communication of obscenity statute to establish that the statute did not apply to conduct inside a motor vehicle, though that amendment was not passed into law. A judge held that the second motion was time-barred.

Lomanto then filed a motion to suppress the introduction of his iPad as evidence on April 4, 2017, arguing the state lacked "probable cause" for the search warrant. The judge denied that motion, too, finding no errors in the issuance or execution of the search warrant.

A two-day trial began on May 22, 2017. The jury came back the next day and convicted Lomanto on both counts of the indictment. And a trial judge found him guilty on the disorderly persons offense following the jury trial, and merged the convictions, the decision said.

The judge also denied Lomanto's motion for a new trial and sentenced him to two concurrent one-year terms of probation and five days in county jail, which he had already served.

On appeal, Lomanto again challenged the public obscenity law's constitutionality. He argued that it was overbroad, and that he did not "publicly communicate" anything from inside his closed car, which he claimed has constitutionally protected privacy interests.

"We conclude there was nothing vague or ambiguous about defendant's indictment for violating N.J.S.A. 2C:34-4(b)," the panel wrote.

The judges said the statute is clear in what isn't allowed: for a person to intentionally view pornography in public for others to easily see and hear on property that person owns or leases or operates.

That includes viewing it from one's car, the court said.

"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," said the panel. "Defendant's constitutional challenge is without any basis."