Brostoff v. Berkman

Application pursuant to CPLR article 78 for a judgment vacating an order of the Supreme Court, New York County (Carol Berkman, J.), entered on May 23, 1990, summarily holding petitioner in contempt of court, is denied, the cross-motion granted and the proceeding dismissed, without costs or disbursements.

An examination of the transcript of the underlying proceedings demonstrates that respondent was clearly justified in summarily finding petitioner, an assistant district attorney, in criminal contempt of court. Indeed, petitioner acknowledges that his conduct was regrettable and that he should have complied with the Judge’s command but insists that he did not act in a wilful or contumacious manner. Rather, he urges, the incident in question was the result of a misunderstanding between him and the court, which had consistently treated both him and the office which he represents with disparagement and antipathy. However, the fact remains that regardless of the Judge’s attitude toward petitioner, there was simply no excuse for petitioner’s lack of respect for the court and his refusal to abide by its lawful order. According to section 750 (A) of the Judiciary Law, a court is empowered to punish for criminal contempt a person who is guilty of, among other acts, the following:

"1. Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. * * *

"3. Wilful disobedience to its lawful mandate.

"4. Resistance wilfully offered to its lawful mandate.”

Punishment for contempt may be summary "[w]here the offense is committed in the immediate view and presence of the court” (Judiciary Law § 755; see also, Matter of Katz v Murtagh, 28 NY2d 234). In the instant situation, petitioner was not directed to remove himself from the courtroom; he was simply ordered from the well, an area in which it may well be disruptive to court proceedings to have persons carrying on conversations while cases are being heard. Yet, petitioner’s response to the Judge’s mandate that he leave the well was to announce insolently that "I have a right to be here. I am a deputy bureau chief of this bureau. I am entitled to check my cases.” When the court repeated that he get out of the well and that his choice was either to sit in the audience or depart through the holding pens, petitioner, in effect, taunted the court by stating that "I will go that way [indicating the pens].” Thus, it is evident that he not only deliberately disobeyed the court’s command but his behavior was derisive of the court’s authority. It appears that petitioner had no intention of complying with the court’s lawful order even when he was confronted with the possibility of legal compulsion.

Certainly, the presiding Judge, not an assistant district attorney, possesses the authority to govern the functioning of the court. Moreover, it is the Judge’s responsibility to uphold order and decorum in the court. In that connection, it is within the domain of the Judge to regulate what occurs in his or her courtroom, including activity in the well. If a Judge wishes to have the well cleared, that is his or her right, and neither defense counsel nor the prosecutor may ignore the court’s direction in that respect. According to 22 NYCRR 604.1 (d) (7) an attorney is not relieved of his obligation to maintain a respectful attitude toward the court "by what he may regard as a deficiency in the conduct or ruling of a judge”. As the Court of Appeals has observed, "[hjowever misguided and erroneous the court’s order may have been, petitioner was not free to disregard it and decide for himself the manner in which to proceed” (Matter of Balter v Regan, 63 NY2d 630, 631). Therefore, petitioner was unwarranted in challenging the propriety of the court’s order; so long as it was lawful, he was obliged to obey. Petitioner’s conduct was wilful, defiant, contemptuous and generally offensive, and, consequently, the summary finding of criminal contempt was fully supported by the record. Concur—Murphy, P. J., Sullivan, Carro, Milonas and Rubin, JJ.