Breitbart v. Galligan

• Citation: 525 N.Y.S.2d 219,135 A.D.2d 323
• Parties: In re Application of David BREITBART, Esq., Petitioner, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. Hon. Thomas B. GALLIGAN, a Justice of the Supreme Court of the State of New York, Respondent.
• Decision Date: 10 March 1988
• Court: New York Supreme Court Appellate Division

Page 219

525 N.Y.S.2d 219

135 A.D.2d 323

In re Application of David BREITBART, Esq., Petitioner,

For a judgment pursuant to Article 78 of the Civil Practice

Law and Rules, v. Hon. Thomas B. GALLIGAN, a Justice of the Supreme Court of

the State of New York, Respondent.

Supreme Court, Appellate Division,

First Department.

March 10, 1988.

Robert Koppelman, New York City, for petitioner.

Caren S. Brutten, of counsel (Robert Abrams, New York City), for respondent.

Richard Ware Levitt, New York City, for the New York Criminal Bar Ass'n, as amicus curiae.

Before SANDLER, J.P., and ROSS, ASCH, KASSAL and ELLERIN, JJ.

PER CURIAM.

On April 15, 1987, respondent Justice summarily held petitioner in contempt and deferred further action thereon until the conclusion of the trial. The adjudication of contempt resulted from a colloquy in which petitioner, one of three attorneys representing co-defendants in a homicide trial, intemperately asserted that respondent was improperly holding ex parte conferences with the prosecutor, "planning the trial", and perpetrating "a fraud on the People of the State of New York." Petitioner's offending comments were made in open court, but outside of the presence of the jury. After the summary contempt adjudication, the trial continued without further incident. On June 23, 1987, respondent sentenced petitioner to five days' imprisonment and a $250 fine.

The Court of Appeals has instructed that in summary contempt adjudications:

It is the need for the preservation of the immediate order in the courtroom which justifies the summary procedure--one so summary that the right and need for an evidentiary hearing, counsel, opportunity for adjournment, reference to another Judge, and the like, are not allowable because it would be entirely frustrative of the maintenance of order.

Matter of Katz v. Murtagh, 28 N.Y.2d 234, 238, 321 N.Y.S.2d 104, 269 N.E.2d 816.

In a similar vein, the United States Supreme Court stated in Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767, "To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court's dignity and authority is necessary".

These principles are codified in the Rules of this Court, 22 NYCRR § 604.2(a), which provide, in pertinent part, that:

(1) The power of the court to punish summarily contempt committed in its immediate view and presence shall be exercised only in exceptional and necessitous circumstances, as follows:

(i) Where the offending conduct either

(a) disrupts or threatens to disrupt proceedings actually in progress; or

(b) destroys or undermines or tends seriously to destroy or undermine the dignity and authority of the court in a manner and to the extent that it appears unlikely that the court will be able to continue to conduct its normal business in an appropriate way; and...