That the judiciary must respond sternly to willful and contumacious violations of its orders cannot be questioned. To do less would be to abrogate our constitutional and statutory duty. In the posture in which this appeal is presented, however, we are restrained from the exercise of that duty.
The majority today place the stamp of legal approval on the retrial of a criminal case by the same trier of fact who once before found the defendants guilty beyond a reasonable doubt on the identical criminal charge arising from the same circumstances. This holding is unprecedented. None of the cases cited by the majority or by the parties bears any direct relationship to the crucial issue before us. In my view, this lack of precedent is occasioned by the obvious defect in the proceeding. The simple truth is that it just isn’t done.
The rationale upon which the majority conclusion is founded is faulty not only because it invites the appearance of bias in the administration of justice, but even more compel*140lingly, because it permits a deprivation of liberty and property without due process of law (US Const, 5th and 14th Arndts; NY Const, art I, § 6).
The Sixth Amendment of the Federal Constitution guarantees a trial of a defendant "by an impartial jury”. While it is true that this case involved a Judge as the fact finder rather than a jury, I can find no distinction in law or logic which would sustain the application of any different standard. Surely we would not affirm a judgment of conviction on the retrial of a criminal charge where the verdict was rendered by the same jury which had found the defendant guilty on the' first trial. We would unhesitatingly hold that the defendant was deprived of "a fair trial by a panel of impartial, 'indifferent’ jurors” (Irvin v Dowd, 366 US 717, 722).
In my view, we have before us the commission of grave constitutional error. In such circumstances we are bound by the language of the Court of Appeals: "Not only the individual defendant but the public at large is entitled to assurance that there shall be full observance and enforcement of the cardinal right of a defendant to a fair trial. The appellate courts have an overriding responsibility, never to be eschewed or lightly to be laid aside, to give that assurance. So, if in any instance, an appellate court concludes that there has been such error of a trial court * * * or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant’s conviction. The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right.” (People v Crimmins, 36 NY2d 230, 238.)
Thus I find it unnecessary to review what may well be substantial evidence of the guilt of the defendants. Upon reversal of the first contempt adjudication on jurisdictional grounds and our direction permitting a trial de novo (Board of Educ. v Pisa, 54 AD2d 821), and upon the reassignment of the same Trial Judge to preside at the new trial, the defendants immediately moved for his disqualification. The motion was made, and denied, before any evidence was heard or received. The defendants argue, and I agree, that the prior finding of guilt is a sufficient showing of bias to support the disqualification.
*141I would reverse the judgment and grant a new trial before a different Judge.
Marsh, P. J., Goldman and Wither, JJ., concur with Moule, J.; Dillon, J., dissents in an opinion and votes to reverse the judgment holding defendants in contempt and grant a new trial.
Orders and judgment affirmed, without costs.