This is a proceeding pursuant to article 78 of the CPLR to review the mandate of the Supreme Court, New York County (Martinis, J.), dated November 8,1972, summarily adjudging the petitioner in contempt of court for conduct committed in the presence of the court, imposing a sentence of $250 *195fine or 10 days ’ imprisonment, and excluding the petitioner from the Criminal Court Building, 100 Centre Street, New York, N. Y., while the case of People v. Richard Moore was on trial before Martinis, J.
The petitioner, it seems, is associated in some capacity as a “ writer ” with the Panther Party newspaper, known as Right On, and is represented as no stranger to the courts, having been seen over the years as a frequenter of the courtrooms and corridors of 100 Centre Street. This is to be gleaned from the papers submitted by the petitioner, including the affidavit of Deloris Costello, who describes herself as a reporter for WBAI-FM, and “ involved in reporting trials of political activists in the Supreme Court of New York ”. It is to be noted she observed him distributing literature on request: “ I have only seen him give literature to people who specifically ask”. The affidavit of Martinis, J., says: “ Petitioner Gumbs is no stranger to the Criminal Courts Building. He has been a frequent spectator at these trials; court officers and policemen have informed me that on a number of occasions they have seen him distributing Black Panther or related literature in and around the courthouse; and has even been depositing leaflets under spectators benches. ”
The unfolding drama leading up to his contempt began innocently enough on October 26,1972, when a prospective juror struck up a conversation with him in the corridor outside Trial Part XXXVI. In this Trial Part, the jury selection process was going on, in a case involving the attempted murder of two policemen with a machine gun. And in certain remarks before the panel of jurors, defense counsel made reference to the Black Panther party, of which the defendant was a member. At the time in question, out in the corridor, petitioner was alone and aloof. And he did not initiate the conversation with the prospective juror; although it cannot be said the prospective juror was not unaffected by the encounter, for in narrating the incident,- she (a Mrs. Levine) testified that she saw the paper Right On,11 three [papers] together, plus something else underneath ’ ’ next to petitioner as he sat alone ‘1 quite by himself in a corner and minding his own business. ” The paper attracted her attention. She asked to glance at the paper. The contents were “ so completely negative about the United States ”, and in answer to a query by her, petitioner “ spouted ” his views about injustice in the United States. Thus, the need for insulating other prospective jurors from a possible unfavorable reaction to the party cannot be ignored.
*196The circumstances of this encounter, however, seem to have been carried back to the Presiding Justice in a fashion not completely accurate. ' Given the impression that the petitioner had been propagandizing, and openly displaying various papers, Martinis, J. convoked a hearing in the robing room, the petitioner initially not being present. Then he summoned the petitioner, ordered him to keep out of the courtroom, the corridor and the building and after several interchanges, including a trenchant personal taunt by the petitioner, directed at the Judge, the following developed:
“ a man [Petitioner]: But I’m going to continue coming in this building. If you want to bust me, go ahead.
1 ‘ THE COURT : O.K.
“ a man: You know what I am. Just go ahead and do that. I understand. Because you know what you are, you’re a fascist weak pig.
“ the court: All right.
‘£ a man : That’s what you are.
‘ ‘ the court : Now, I could hold you for contempt, what you said.
“a man: Hold me for contempt. I’m not intimidated by fear from you. I’ve been in this country four hundred years being fucked over by people like you.
“ the court : Because of disrespect and your language.
“ a man: Who are you for disrespect? Ninety-eight percent of the people in your concentration camps are black and Puerto Bican.
“ the court: You are contumacious.
‘ ‘ a man : Ninety-eight are Puerto Bican.
“ the court: —and I’m holding you in contempt and adjudging you in contempt and I’m fining you two hundred and fifty-dollars or ten days in the work house ”.
Then, following an intervention- in his behalf by Mr. Bloom, the attorney for the defendant on trial, the court said:
££ the court: I’ll take your suggestion. I’ll vacate the contempt. Outside. Go outside. And remember my directive. ’’
Come November 8, 1972, or about two weeks later, the petitioner reappeared in Trial Term XXXVI, apparently again with papers in his hgnd, as he had previously, and with the ease of People v. Moore then in full progress, lit is noteworthy that in the interim the petitioner took no steps to nullify the exclusion order, nor did he make any effort to lift the ban, although he seems to have been knowledgeable in the ways of the courts and to have had ready access to legal help. He made no timely *197application; and he proffered no explanation. (Walker v. City of Birmingham, 388 U.S. 307.) In onr view, if he thought the grounds for his ban to have been infirm, as indeed, they may have been, he had his remedy, as available to him then as in the instant proceeding. (Matter of Katz v. Murtagh, 34 A D 2d 517, affd. 28 N Y 2d 234; Judiciary Law, § 752.) But he was not free to flout the court’s charge. (Walker v. City of Birmingham, supra, p. 320.) He had been warned by Mr. Bloom, his informal counsel on October 26, 1972, that he was bound by the court’s order and was inviting contempt and could be jailed if he disobeyed the order. And the Judge’s parting words on October 26, 1972, were: “Remember my directive”.
And so on November 8, 1972, the following developed:
‘‘ the court : Didn’t you appear before me last week?
‘‘ the mah : I was in this court, but it wasn’t last week, it was the week before.
11 the court : The week before.
‘ ‘ the mah : In your chambers.
£ ‘ the court : Yes, and I directed you and ordered you to stay out of this Court and out of the corridors of this courtroom while this Court was in progress, otherwise I would hold you in contempt.
‘ ‘ the mah : For what? For what reason?
‘ ‘ the court : Because I ordered you out.
“ the mah : That ain’t good enough. You can’t arbitrarily keep the public out of a courtroom. My behavior has been exemplary in this building, and you cannot hold the public out of a courtroom arbitrarily and fascistically.
“ A spectator ih the courtroom : That’s right.
“ court officer : Quiet.
“ the mah: My behavior has always been exemplary. I’ve always acted in accordance with the rules and regulations of this Court.
“ the court : All right, I am ordering you out of this courtroom. I’ll give you an opportunity to purge yourself by leaving this courtroom right now.
‘ ‘ the mah : Well, I’m sorry, I’m not abiding by that. I don’t intend to obey it. This is a public building.
‘ ‘ the court : I adjudge you in contempt of this Court for violating this Court’s order, and I’m fining you $250.00 or ten days in jail. Put him in. * * *
“ the court: Yes, but I, as the presiding Justice of this Court—
£ 6 the mah : Who are you, Hitler? ,
*198“ the court : —am ordering you out of this courtroom and out of the corridors of this hall. : ";
“ the mah : This is my area of work.
the court : Your exception is on the record. Put him in. V -
the mah : My area of work is to assist political prisoners in your concentration camps, to arouse the political consciousness of the people, and I’m not letting you, in a Fascist order, keep me out of a public building. You are wrong and you know you' are wrong.
“the court: I made my statement for the record. I’m adjudging you in contempt.”
In our view, it.does not seem to be unrealistic to conclude that petitioner returned to the court’s presence in order to welcome or be the catalyst -of a disrupting incident. This seems to be a fair inference, in the light of his previously displayed truculent attitude towards the Bench on October 26, 1972, and his instantaneously intransigent attitude to the same Bench on November 8,1972. And motivation is important. “ The key of course is the motivation which produced the disruptions.” (Breitel, J., Matter of Katz v. Murtagh, supra, p. 241.) He deliberately returned, although under a ban, to the same audience of court attaches, attorneys, parties, jurors, etc. This fresh affront obviously was courting an outbreak or at least, a public reaction from the Bench, and in our judgment,, his unbridled and provocative language, in open court, and the contemptuous manner in which he refused to obey the court, showed a calculated disrespect for the authority and dignity of .the court, warranting a punishment for contumacious behavior committed in the immediate presence of the court, pursuant to section 750 of the Judiciary Law.
We eknnot accept the view of the dissent that petitioner’s conduct on November 8, 1972, when there was a continuing and renewed direction to stay out of court, did not disturb the court’s business and was not an attempted ‘ ‘ demoralization of the court’s authority before the public ”. This is aside from any antecedent conduct which abusively challenged the court’s authority to preserve from taint the integrity of an ongoing trial and prevent an interruption of the trial process. As stated by Breitel, J., in Matter of Katz v. Murtagh (supra, pp. 240-241): “ Nor are there alternatives to summary action except at the expense of fulfilling the frustration intended. Alternatives requiring pyramided collateral proceedings and delays would be worse than the contempts, ’ ’
*199In our judgment, the Trial Judge, according to his lights, and based on the information he had, and based on his own encounter with the petitioner, in his own mind was justified in ordering the petitioner out of his courtroom lest he disrupt the trial then in progress. And on November 8, 1972, the petitioner, in a contemptuous and contumacious manner, refused to obey the court. The record is clear:
“ the court : All right. I’m ordering you out of this courtroom. I’ll give you an opportunity to purge yourself by leaving this courtroom right now. (Italics mine.)
“ the mast: Well I’m sorry, I’m not abiding by it. I don’t intend,to obey it.” (Italics mine.)
Thus, we sustain the Trial Judge. He alone evaluated the situation, and he alone had the duty to safeguard the integrity of the case on trial before him, and the right of that defendant to an impartial jury. He afforded the petitioner an opportunity to avoid contempt, i.e., by leaving the courtroom, and since petitioner defiantly and fractiously refused to obey the court mandate, we view this as a proper case for the exercise of the court’s summary power, as in Matter of Douglas v. Adel (269 N. Y. 144) and the conviction is sustained, and the petition is dismissed.
We can do no other. The alternative we hesitate to contemplate. Failing to sustain the court’s sanction, under the totality of all the prevailing circumstances, would result in a complete stultification of the trial court’s authority. In this day, particularly in trials where there is a “ political activist ” overtone, and where such an undue stress and strain is placed on the Trial Judge, his hand and his authority over his own courtroom must he upheld, whenever the authority is not improperly or oppressively exercised. Otherwise, the trial process, as we have known it, will come to chaos and dissolution.
Accordingly, under the totality of circumstances and the full context of this episode, the adjudication of contempt should not be disturbed*.
It cannot be said that the petitioner had no opportunity to make a choice between payment of the fine and remaining in jail. It is apparent from the record that petitioner “ had from 11 o’clock to 5 to raise the money ”, and there is no expression of a desire to so do during that time, although he was visited by his wife, who had been in court that day. Nor during that time was there a request for a stay, pending an opportunity' to defray the fine. The question of indigency was not pressed; and no election to pay the fine was made “ until late in the afternoon of November 8, 1972 ”, after denial of the motions to vacate the contempt and stay execution. Of. petitioner’s petition, verified by his attorney, Rhonda Copelon Schoenbrod, dated November 14, 1972. And see, also, her *200letter of the same date, addressed to this court revealing that “the petitioner Prank Gumbs did on the evening of November 10, after serving one-quarter of his sentence, pay under protest the fine imposed by Justice Martinis and is presently at liberty Since’ the issue of his financial means is not raised, the motives of the choice to remain in custody are not clear. Thus, the situation is not within the rationale of Tate v. Short (401 U. S. 395 [1971]).