Doyle v. Aison

• Decision Date: 08 June 1995
• Citation: 627 N.Y.S.2d 485,216 A.D.2d 634
• Parties: In the Matter of Patrick K. DOYLE, Petitioner, v. Howard M. AISON, as Judge of the Montgomery County Court, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 485

627 N.Y.S.2d 485

216 A.D.2d 634

In the Matter of Patrick K. DOYLE, Petitioner, v. Howard M. AISON, as Judge of the Montgomery County Court, Respondent.

Supreme Court, Appellate Division,

Third Department.

June 8, 1995.

Schur & McAuliffe (Ronald R. Schur Jr., of counsel), Northville, for petitioner.

Dennis C. Vacco, Atty. Gen. (Troy J. Oechsner, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and MERCURE, CREW, CASEY and YESAWICH, JJ.

CASEY, Justice.

Proceeding pursuant to CPLR article 78 (initiated in this court pursuant to CPLR 506[b][1] to, inter alia, expunge an order holding petitioner in criminal contempt of court.

Petitioner, who was subpoenaed as a witness for the defense in a murder trial, appeared in Montgomery County Court wearing a T-shirt which bore the statement, "If assholes could fly this place would be an airport." After petitioner took the stand, respondent held a side bar discussion with the attorneys and then sent the jurors to the jury room. Responding to respondent's questions about the propriety of the T-shirt as attire in a courtroom, petitioner explained that he had not had a chance to do his laundry and usually wore the T-shirt to work. He also said that he had a coat with him. The trial was then recessed and respondent informed the attorneys that he intended to hold petitioner, who had been instructed not to leave the courthouse, in contempt of court, but that he would not do so until after petitioner had testified. Defense counsel stated that she had decided not to call petitioner as a witness, but wanted the trial to proceed because of her concern that the jury might be affected by any delay for the contempt proceeding. Respondent agreed that the trial could continue and the contempt proceeding could be conducted when the trial recessed for lunch.

During the contempt proceeding, petitioner was given an opportunity to explain his conduct. He stated that he had a limited amount of clothing and had no other clean clothes to wear that day. Respondent found that petitioner knew that the T-shirt was not proper attire for a courtroom and that petitioner's conduct had disrupted the criminal proceeding. Respondent summarily adjudicated petitioner to be in criminal contempt and imposed a sentence of 30 days in jail. After petitioner commenced this proceeding to expunge respondent's order, this court stayed the order and petitioner was released from jail pending the outcome of this proceeding.

Respondent was clearly justified in concluding that petitioner knew the T-shirt was inappropriate attire for a courtroom. The record, however, does not support respondent's use of the power to summarily punish a contempt. Although Judiciary Law § 755 appears to authorize the use of the summary procedure whenever the offense is committed in the immediate view and presence of the court, the Court of Appeals explained in Matter of Katz v. Murtagh, 28 N.Y.2d 234, 238, 321 N.Y.S.2d 104, 269 N.E.2d 816, that "[i]t 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". The First and Second Departments have adopted specific rules which limit a court's summary contempt power to "exceptional and necessitous circumstances" (22 NYCRR 604.2[a][1]; 701.2[a] when the court "reasonably believes that a prompt summary adjudication of contempt may aid in maintaining or restoring and maintaining proper order and decorum" (22 NYCRR 604.2[a][1][ii]; 701.2[a][2]. This court has not adopted a similar rule, but we conclude that the limitations imposed by the rules are consistent with and required by the holding in Matter of Katz v. Murtagh, supra (see, Matter of Kunstler v. Galligan, 79 N.Y.2d 775, 579 N.Y.S.2d 648, 587 N.E.2d 286, affg. on opn. below168 A.D.2d 146, 571 N.Y.S.2d 930).

Petitioner's conduct in wearing a T-shirt that was clearly improper attire for a courtroom was not, in and of itself, the...