Opinion
2004-183 K CR.
Decided June 30, 2005.
Appeal by Kawain Boston from an order of the Criminal Court, Kings County (C. Posner, J.), dated January 22, 2004, summarily adjudging him in criminal contempt of court and imposing sentence.
Order unanimously reversed without costs and the sentence imposed thereon vacated.
Before: PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
The circumstances of the present matter, involving a fight in a courthouse hallway, while properly constituting criminal contempt ( see Cooke v. United States, 267 US 517; Doyle v. Aison, 216 AD2d 634), do not rise to the level at which summary punishment is permitted ( see generally Judiciary Law §§ 750, 755). By the account of the judge involved, he emerged from his courtroom as the four contemnors, including appellant herein, were being placed under arrest some 40 feet from the courtroom door. In the circumstances, there was no further immediate disciplinary effect that summarily imposing a 30-day jail sentence could have had upon them. Thus, the factors underlying proper exercise of the summary contempt power — the immediate need to restore order in the course of an ongoing proceeding and to uphold the dignity of the court — were absent ( see Matter of Williams v. Cornelius, 76 NY2d 542; Doyle, 216 AD2d 634, supra). The Rules of the Appellate Division, Second Department, explicitly recognize that such circumstances exist:
"§ 701.3 Exercise of the contempt power after hearing. In all other cases [not covered by § 701.2], notwithstanding the occurrence of the contumacious conduct in the view and presence of the sitting court, the contempt shall be adjudicated at a plenary hearing with due process of law including notice, written charges, assistance of counsel, compulsory process for production of evidence and an opportunity of the accused to confront witnesses against him" (emphasis supplied).
Setting the matter down for a plenary hearing would not have delayed or interfered with the "preservation of immediate order of the courtroom" ( Matter of Katz v. Murtagh, 28 NY2d 234, 238), and in these circumstances, the judge could not have had the required reasonable belief that summary adjudication of contempt would aid in maintaining or restoring order (Rules of App Div, 2nd Dept [ 22 NYCRR] § 701.2 [a] [2]).
It should be noted that normally summary criminal contempt proceedings are reviewable in a CPLR article 78 proceeding, commenced in the Appellate Division ( see CPLR 506), because the record is usually not sufficient to afford proper direct appellate review ( see Judiciary Law § 752, 755; Cahn v. Vario, 32 AD2d 564). In this matter, however, a hearing on the record was held, at which time both the judge involved (who is now deceased) and the respondent made sufficiently detailed statements concerning the circumstances to permit direct appellate review ( see People v. Zweig, 32 AD2d 569, 570). While generally a matter of this type would be remanded for a plenary hearing in accordance with Rules of the Appellate Division, Second Department (22 NYCRR) § 701.3, the appellant has already served eight days of incarceration in connection herewith, and criminal charges were brought against him. Moreover, the judge who made the original finding of contempt is deceased. In the circumstances, therefore, we decline to remand this matter.