State v. Lashinsky

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtHANDLER; HUGHES; PASHMAN; CLIFFORD; MOUNTAIN
Parties, 5 Media L. Rep. 1418 STATE of New Jersey, Plaintiff-Respondent, v. Harvey I. LASHINSKY, Defendant-Appellant.
Decision Date23 July 1979

Page 1

81 N.J. 1
404 A.2d 1121, 5 Media L. Rep. 1418
STATE of New Jersey, Plaintiff-Respondent,
v.
Harvey I. LASHINSKY, Defendant-Appellant.
Supreme Court of New Jersey.
Argued April 3, 1979.
Decided July 23, 1979.

[404 A.2d 1123]

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Donald A. Robinson, Newark, for defendant-appellant (Robinson, Wayne & Greenberg, Newark, attorneys; Sabin, Bermant & Blau, New York City, of the New York Bar, of counsel; Donald A. Robinson, Nicholas L. Ribis and John B. Livelli, Newark, on the briefs).

Robert E. Rochford, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney; John J. DeCicco, George Ciszak, Deputy Attys. Gen., of counsel; Stephen H. Monson, Robert A. Rochford and Debra L. Stone, Deputy Attys. Gen., of counsel and on the briefs).

Arthur J. Lesemann, Hackensack, submitted a brief on behalf of amicus curiae The Associated Press (Mazer, Lesemann & Rupp, Hackensack, attorneys).

The opinion of the court was delivered by

HANDLER, J.

The question before the Court in this case is whether the defendant, Harvey I. Lashinsky, a press photographer employed by a newspaper, The Star-Ledger, was properly convicted as a disorderly person for his refusal to heed a police officer's order

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to move back from the immediate vicinity of a gory, fatal automobile accident on the Garden[404 A.2d 1124] State Parkway. Lashinsky was charged with violating N.J.S.A. 2A:170-29(2)(b) which provides that: "Any person who in any place, public or private * * * obstructs, molests or interferes with any person lawfully therein * * * is a disorderly person." On May 16, 1978, after a three day trial before the Sayreville Municipal Court, defendant was adjudged guilty and fined $25 plus court costs. On June 9, 1978 the Middlesex County Court conducted a trial De novo on the record and sustained the conviction but reduced defendant's fine to $10 and court costs to $5. We granted direct certification on January 9, 1979, 79 N.J. 475, 401 A.2d 230, and now affirm.

The events giving rise to defendant's arrest began at about 1:45 p. m. on March 25, 1977 when Lashinsky, driving south along the Parkway, noticed a broken guardrail and a car overturned on a sloped embankment on the shoulder of the road. Believing that the accident was a "spot news event" worthy of coverage, defendant parked his car about 150 feet away, placed his press pass identification in the windshield, proceeded toward the wreckage and took several pictures.

About fifteen or twenty minutes later Trooper Eric Herkloz of the New Jersey State Police arrived. By this time a crowd of about forty or fifty people had gathered in the vicinity of the accident. A member of the Herbertsville First Aid Squad who had stopped to provide help advised the officer that there were casualties. A girl, seriously injured, covered with blood and going into shock, was pinned inside the automobile against the corpse of her mother, who had been decapitated. Herkloz went back to his patrol car and radioed for an ambulance and police "back-up" units. Upon returning to the area of the wreck, the officer noticed that gas, oil and transmission fluid were leaking from the vehicle and that the car's battery, although still attached to the electrical system, had fallen from the car and cracked open. In addition a great deal of personal property was

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strewn about the crash site. 1 Fearing that a fire might break out which would jeopardize the safety of the injured victim, those attending her and the numerous onlookers, and cognizant of standard police procedures which require that the scene of a traffic fatality be preserved for investigation, Herkloz decided to clear the area of spectators. Everyone, except two individuals involved in first aid, was asked to withdraw from the area until the police back-up assistance arrived. About fifteen or twenty spectators, including the defendant, failed to comply with the request immediately. Herkloz turned his attention alternately between Lashinsky, who was positioned down the embankment where the wreck had come to rest, and members of the crowd, who had begun to proceed up the slope. Lashinsky was asked, individually, to "please leave the scene". The photographer stepped back five feet but withdrew no farther. Lashinsky showed Herkloz a press card issued by the State Police. The trooper told Lashinsky "I don't care at this point" and again asked him to "please leave the scene". Defendant claimed at trial that Herkloz then arrested him immediately, before he had a chance to respond. However, the trooper and the two first aid assistants testified that prior to the arrest, Lashinsky engaged the trooper in a heated argument, lasting about three to four minutes, during which Lashinsky hurled expletives at Herkloz and told the officer to go away and do his own job and let Lashinsky do his. After it became quite apparent that the photographer had no intention of removing himself from the scene, he was arrested.

Although it is undisputed that Lashinsky never actually touched or threatened the officer, there is ample evidence from which to conclude that the defendant impeded the trooper in the performance of his duties. The County Court Judge found that the size of the crowd at the accident scene made it very difficult

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for a lone policeman to exercise control. Herkloz testified that, during [404 A.2d 1125] the argument, other spectators, who had begun leaving the scene, "stopped * * * and turned around and paid attention to the defendant who was screaming at (the trooper) * * * ". The officer added that, had it not been for the altercation with Lashinsky, he would have spent that time giving first aid to the victim still inside the vehicle and assisting the person already providing first aid, who herself testified that she had wanted to obtain help from the officer but had been unable to secure his attention because he had his back to her and was busy arguing with Lashinsky.

To complete the factual picture, it should be noted that some time After Lashinsky was arrested, two other photographers, one from the New Jersey Highway Authority (which operates the Garden State Parkway) and one from the State Police, arrived and, since they had official duties, were permitted by Herkloz to take pictures. The trooper testified that he had allowed one of these men to stay, because "(h)e (was) supposed to be out there to take pictures of the accident * * * . It was the man's job."

Two important related questions emerge from defendant's primary contention that his conduct was not proscribed by the disorderly persons statute, N.J.S.A. 2A:170-29(2)(b). One involves the assertion that his conduct simply was not the kind of activity which the statute intended to forbid as a disorderly persons offense. The other is that his status as a newspaperman, a press photographer, was in a sense privileged and constituted a defense to the disorderly persons charge. Defendant also contends that the statute under which he was convicted was unconstitutionally vague and overbroad. We deal with each of these issues.

I

Defendant argues that his conduct should not be considered to have violated the disorderly persons statute because he did not directly, physically interfere with the officer's movement and

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because he did not have the specific intent to interfere with the officer. 2 His offered interpretation of the statute, which would exempt his actions, is overly narrow.

This statute, which forbids an individual to obstruct, molest or interfere with another person who is lawfully in any place, N.J.S.A. 2A:170-29(2)(b), does not by its express terms import the notion that the prohibited conduct must be physical in nature. Obviously, conduct involving direct contact which physically obstructs or restrains the lawful activities of another individual, see, E. g., Haywood v. Ryan, 85 N.J.L. 116, 118-119, 88 A. 820 (Sup.Ct.1913); State v. Guillotte, 10 N.J.Super. 502, 503, 77 A.2d 65 (Cty.Ct.1950), would constitute a ready example of the statute's application. It does not follow, however, that the outer limits of the statutory prohibition is restricted to such physical interference and nothing more. The court in State v. Furino, 85 N.J.Super. 345, 348, 204 A.2d 718 (App.Div.1964), holding that the statute would prohibit conduct which impedes the task of a police officer, observed:

The three verbs are definite, clear and distinct, readily understood and employed in the every-day speech of the man on the street. Refined definition is unnecessary. "Obstruct" means to object or come in the way of; to hinder from action; to impede. "Molest" means to interfere with or meddle with unwarrantably. And "interfere" is defined as to enter into or take a part in the concern of others; to intermeddle, intervene. Webster's New International Dictionary, (2d ed. 1948); and see 3 Wharton's Criminal Law (Anderson ed. 1957) § 1284, p. 634.

Accord, State v. Manning, 146 N.J.Super. 589, 593, 370 A.2d 499 (App.Div.1977); see State v. Smith, 46 N.J. 510, 520, 218 A.2d 147, Cert. Den. 385 U.S. 838, 87 S.Ct. 85, 17 [404 A.2d 1126] L.Ed.2d 71 (1966); State v. Taylor, 121 N.J.Super. 395, 398, 297 A.2d 216 (Cty.Dist.Ct.1972). A number of cases have held that interference does not require actual or total physical

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frustration, State v. Smith, supra; Tp. of East Brunswick v. Malfitano, 108 N.J.Super. 244, 246-247, 260 A.2d 862 (App.Div.1970); State v. Taylor, 38 N.J.Super. 6, 29-30, 118 A.2d 36 (App.Div.1955); it may include conduct which involves unwarranted intervening or intermeddling in the activities of others, State v. Manning, supra.

A real concern expressed by those who believe the statute is limited to "physical interference with personal movement", E. g., id. 146 N.J.Super. at 598, 370 A.2d 499 (Antell, J., dissenting), is that, otherwise, an arresting officer could act arbitrarily to "convert the character of an event from nonpunishable to punishable...

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    ...conflicts of interest statute "are not so uncertain and indefinite as to render the act void on its face."); State v. Lashinsky, 81 N.J. 1, 15-18, 404 A.2d 1121 (1979); State v. Zito, 54 N.J. 206, 218, 254 A.2d 769 (1969). It is not to be anticipated that the statute will be arbitrarily or ......
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    ...readily understood and employed in the every-day speech of the man on the street. Refined definition is unnecessary." State v. Lashinsky, 81 N.J. 1, 9, 404 A.2d 1121 (1979) (quoting State v. Furino, 85 N.J.Super. 345, 348, 204 A.2d 718 The majority resists a reading of the statute that zero......
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    ..."so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." State v. Lashinsky, 81 N.J. 1, 17-18, 404 A.2d 1121 (1979). As long as procedural and judicial safeguards are available, however, the fact that certain statutory phrases are no......
  • Brown v. City of Newark
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    • January 18, 1989
    ...A.2d 862. No one should be criminally responsible for conduct that could not reasonably be understood to be proscribed. State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979). That principle applies to the subject ordinance, a violation of which carries a potential maximum fine of $500 and......
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60 cases
  • New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Commission
    • United States
    • United States State Supreme Court (New Jersey)
    • May 8, 1980
    ...conflicts of interest statute "are not so uncertain and indefinite as to render the act void on its face."); State v. Lashinsky, 81 N.J. 1, 15-18, 404 A.2d 1121 (1979); State v. Zito, 54 N.J. 206, 218, 254 A.2d 769 (1969). It is not to be anticipated that the statute will be arbitrarily or ......
  • State v. Tischio
    • United States
    • United States State Supreme Court (New Jersey)
    • June 30, 1987
    ...readily understood and employed in the every-day speech of the man on the street. Refined definition is unnecessary." State v. Lashinsky, 81 N.J. 1, 9, 404 A.2d 1121 (1979) (quoting State v. Furino, 85 N.J.Super. 345, 348, 204 A.2d 718 The majority resists a reading of the statute that zero......
  • Hotel and Restaurant Employees and Bartenders Intern. Union Local 54, Matter of
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 11, 1985
    ..."so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." State v. Lashinsky, 81 N.J. 1, 17-18, 404 A.2d 1121 (1979). As long as procedural and judicial safeguards are available, however, the fact that certain statutory phrases are no......
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    • United States
    • United States State Supreme Court (New Jersey)
    • January 18, 1989
    ...A.2d 862. No one should be criminally responsible for conduct that could not reasonably be understood to be proscribed. State v. Lashinsky, 81 N.J. 1, 17, 404 A.2d 1121 (1979). That principle applies to the subject ordinance, a violation of which carries a potential maximum fine of $500 and......
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