Justice Timpone continued: The State argues that the failure to remove the lock here was analogous to conduct that we found violative in State v. Lashinsky (1979). In that case, we addressed a defendant’s conviction for disorderly conduct for disobeying an officer’s command to leave the scene of a fatal motor vehicle accident. The defendant, a photo-journalist, had pulled over to photograph an accident on the Garden State Parkway. Because a crowd had formed and fluids were leaking from the vehicles, a state trooper became concerned for crowd safety. After the trooper repeatedly asked the defendant to move back from the scene, the defendant “engaged the trooper in a heated argument,” lasting several minutes. The trooper arrested the defendant when “it became quite apparent that the photographer had no intention of removing himself from the scene.”
On appeal from his conviction, Lashinsky argued that the factual basis for his conviction was improper “because he did not directly, physically interfere with the officer’s movement.” The statute at issue in Lashinsky, N.J.S.A. 2A:170-29(2)(b), made it unlawful for a person to “obstruct, molest or interfere with another person who is lawfully in any place.” In affirming Lashinsky’s conviction, we found that the language of the statute “did not by its express terms import the notion that the prohibited conduct must be physical in nature.” We held that Lashinsky’s refusal to leave the scene of an accident after being instructed to do so provided a sufficient factual basis for his conviction under the disorderly person statute.
The wholly distinct statute at issue in Lashinsky, as well as the very different context of that case, involving not entry into a home but rather a protective relocation of spectators in a public place, renders Lashinsky inapplicable here.
In sum, N.J.S.A. 2C:29-1(a) clearly states that any means of alleged obstruction other than those explicitly listed must be accompanied by “affirmative interference” to run afoul of the criminal obstruction statute. Here, there was no such “affirmative interference,” nor did defendant’s failure to remove the chain lock from the door fit into any of the statute’s enumerated modes of behaviors. There was thus no factual basis for Fede’s obstruction conviction under the circumstances of this case. Accordingly, we reverse the judgment of the Appellate Division and vacate Fede’s conviction.
A predictable result of this case will be that in close cases the police will be encouraged to charge “disorderly conduct” as opposed to obstructing the administration of law. Then, they can rely on the broad language of the Lashinksy case in order to gain a conviction.
