People v Gibbs (Richard)

[*1] People v Gibbs (Richard) 2007 NY Slip Op 50600(U) [15 Misc 3d 128(A)] Decided on March 26, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and LIPPMAN, JJ
2005-1723 S CR.

The People of the State of New York, Respondent,

against

Richard Gibbs, Appellant.

Appeal from a judgment of the Justice Court of the Town of East Hampton, Suffolk County (Catherine A. Cahill, J.), rendered October 20, 2005. The judgment convicted defendant, upon a jury verdict, of obstructing governmental administration in the second degree.

Judgment of conviction affirmed.

The evidence proffered by the People established that the Town of East Hampton's code enforcement office received a complaint alleging that defendant may have been violating the Town Code by improperly renting units on a year-round basis. As a result of the complaint, a code enforcement officer went to defendant's property to
investigate how the property was being used. During the course of the investigation, defendant approached the officer, who was wearing his uniform jacket, and grabbed the officer's notebook. After the officer advised defendant that he worked for the office of code enforcement, defendant ripped the page out of the notebook upon which the officer had recorded his notes and refused to return it. The evidence further established that defendant's use of his property was ultimately determined to be lawful. Although it has been held that "a defendant may not be convicted of obstructing governmental administration or interfering with an officer in the performance of an official function unless it is established that the police were engaged in authorized conduct" (People v Lupinacci, 191 AD2d 589, 590 [1993]), a lawful investigation of a complaint constitutes authorized conduct by a code enforcement officer. Consequently, viewing such evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), it [*2]was legally sufficient to establish the defendant's guilt of obstructing governmental administration in the second degree (Penal Law § 195.05) beyond a reasonable doubt (see e.g. People v Stumpp, 129 Misc 2d 703 [1985], affd 132 Misc 2d 3 [1986]).

While the People's actions with respect to the photograph they introduced into evidence violated CPL 240.20 and the People's witnesses were improperly permitted to testify concerning a hearsay statement uttered by an unidentified witness, these errors were harmless beyond a reasonable doubt since there was overwhelming proof of defendant's guilt and there was no significant probability that the jury would have acquitted defendant had the photograph and statement been excluded (see People v Crimmins, 36 NY2d 230 [1975]).

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: March 26, 2007