Katz v. Murtagh

• Citation: 269 N.E.2d 816,321 N.Y.S.2d 104,28 N.Y.2d 234
• Parties: , 269 N.E.2d 816 In the Matter of Alvin KATZ, Appellant, v. John MURTAGH, as Supreme Court Justice, New York County, Respondent.
• Decision Date: 08 April 1971
• Court: New York Court of Appeals

Page 104

321 N.Y.S.2d 104

28 N.Y.2d 234, 269 N.E.2d 816

In the Matter of Alvin KATZ, Appellant, v. John MURTAGH, as Supreme Court Justice, New York County, Respondent.

Court of Appeals of New York.

April 8, 1971.

Paul G. Chevigny, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Bennett L. Gershman and Michael R. Juviler, New York City, of counsel), for respondent.

BREITEL, Judge.

On February 19, 1970, petitioner, an otherwise uninvolved spectator at a pretrial hearing in the so-called Black Panther criminal prosecution in New York County (People v. Shakur, et al.), joined the audience in rising, when defendants entered the courtroom, and raised his arm in 'defiant salute' while others shouted 'All power to the people.' This followed a caution given to the audience by the presiding Justice immediately preceding the described occurrence: 'All right. I caution the auditence again that I will not tolerate any misconduct from anyone attending the trial. We will have the defendants (in).' Petitioner was singled out by the Justice, brought before the bench, warned that the court was considering holding him in contempt and asked if he had anything to say. The response was 'I don't recognize this Court as representing the people, and therefore I have no respect for this court, and I will say what I feel like saying, because this is what I believe in.'

The court then recited the facts as it had viewed them, substantially as stated above, and adjudged petitioner guilty of contempt of court. A short recess was taken to prepare the mandate, during which time counsel for petitioner appeared. Counsel argued on behalf of petitioner as did one of the attorneys for the defendants. It was suggested at one point that the rhetoric of a public speaker the previous evening had inspired the presence and conduct of many of the people, including petitioner, in the audience that morning. No explaination or denial of fact on behalf of petitioner was offered, nor was there any apology or suggestion of contrition. The court adhered to its finding of criminal contempt and sentenced relator to 30 days in jail, which sentence has been served.

The proceeding was a summary one for a criminal contempt committed in the immediate view and presence of the court under section 750 of the Judiciary Law. Unconsol.Laws, c. 30. Petitioner sought review in the Appellate Division by this proceeding under CPLR article 78. That court confirmed the determination, 34 A.D.2d 517, 308 N.Y.S.2d 636.

Section 750 provides:

'A. A court of record has power to punish for a criminal contempt, a person guilty of any of the following acts, and no others:

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.

* * *'ful

In appealing to this court as of right on constitutional grounds (CPLR 5601, subd. (b) par. 1), petitioner argues that his conduct did not constitute contempt as defined by the statute. He also urges that he was entitled to a further evidentiary hearing to determine his guilt and that it was a violation of his privilege against self incrimination to elicit from him the statement in which he told the court he had no respect for it and that he would say that he felt like saying. Finally, he contends that he was entitled to an adjournment as counsel requested and that another Judge should have determined the issue.

The arguments are specious and the judgment should be affirmed.

Disorder in courtrooms and the summary control of such disorder is not new. The applicable rules are ancient, going back to the common law, and there is little novelty to be discerned or devised (Matter of Barnes, 204 N.Y. 108, 113--114, 97 N.E. 508, 509, covering judicial and legislative proceedings; see, also, Matter of Douglas v. Adel, 269 N.Y. 144, 146--147, 199 N.E. 35, 36--37; Bloom v. Illinois, 391 U.S. 194, n. 2, at pp. 198--200, 88 S.Ct. 1477, 20 L.Ed.2d 522). It is only the recent and frequent recurrence of courtroom disorder in so many places for protrarcted periods which makes the problem strikingly topical. Indeed, the conduct of petitioner took place well over a year ago during pretrial hearings followed shortly by the trial itself, and it is significant that the trial is still unfinished. Prior to the incident in question, the hearings had been punctuated and delayed by allegedly disorderly efforts to disrupt the proceedings.

Petitioner's conduct was a contempt. It is immaterial whether he shouted with the others. It is enough that by rising and raising his arm he joined the others in an unequivocal demonstration of disrespect designed only for that purpose and to interrupt the proceedings. The consciousness and purpose with which he acted, already implicit enough, were made explicit by his response to the court on being arraigned at the bench.

The arraignment at the bench and the query whether he had anything to say after being told what the presiding Justice had in mind was not an interrogation about past events, nor was it an interrogation by law enforcement officials in a custodial reference. It was the essential proffer in open court of an opportunity to a person, advised that he was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced. Indeed, if the court had failed to do just that, the action taken would have been highhanded if not wholly null, given the summary power that was being exercised.

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. Of course, such rigorous procedure is justified only by necessity and must then be based upon contemptuous conduct committed in the view and presence of the presiding Justice. Thus it was said in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767: 'To preserve order in the courtroom 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. It has always been so in the courts of the common law, and the punishment imposed is due process of law. Such a case had great consideration in the decision of this court in Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405. It was there held that a court of the United States upon the commission of a contempt in open court might upon its own knowledge of the facts, without further proof, without issue or trial, and without hearing an explanation of the motives of the offender, immediately...