Sassower v. SHERIFF OF WESTCHESTER COUNTY

• Decision Date: 04 December 1986
• Docket Number: No. 86 Civ. 7403 (DNE).,86 Civ. 7403 (DNE).
• Parties: George SASSOWER, Petitioner, v. The SHERIFF OF WESTCHESTER COUNTY, Respondent.
• Court: U.S. District Court — Southern District of New York

651 F. Supp. 128

George SASSOWER, Petitioner, v. The SHERIFF OF WESTCHESTER COUNTY, Respondent.

No. 86 Civ. 7403 (DNE).

United States District Court, S.D. New York.

December 4, 1986.

MEMORANDUM AND ORDER

EDELSTEIN, District Judge:

Petitioner, pro se, brought a habeas corpus action pursuant to 28 U.S.C. Section 2254 to challenge a term of incarceration of thirty days imposed for his conviction on sixty-three counts of criminal contempt.¹ This court referred this habeas corpus petition to Magistrate Nina Gershon on October 3, 1986. On November 24, 1986, Magistrate Gershon held a hearing on this matter and by report and recommendation also dated November 24, 1986, recommended that the petition for the writ be granted. This court, after a de novo review and consideration of the objections to the Magistrate's report, adopts the findings and recommendations of the Magistrate.

The petitioner, George Sassower, was found guilty of sixty-three counts of non-summary criminal contempt by a New York State Special Referee. The contempt arose from claims that the petitioner, an attorney, continued to serve pleadings in a number of civil proceedings after being ordered not to do so by Justices Sinclair and Grammerman of the New York Supreme Court. On January 30, 1985, Lee Feldman, the court appointed receiver for a party to these civil proceedings, moved to have Sassower punished for contempt. The matter was referred to Special Referee Donald Diamond by Justice Evans of the New York Supreme Court. Diamond, without conducting an evidentiary hearing or a trial, found Sassower guilty of sixty-three counts of non-summary criminal contempt and recommended that Sassower be fined 250 dollars for each offense and be confined for thirty days.

Justice Evans adopted the Referee's finding of guilt but denied, with leave to renew, the recommendation that a fine and jail sentence should be imposed. On January 21, 1986, Justice Evans denied a renewed motion to confirm the referee's report and to punish Sassower for contempt. The Appellate Division, First Department, however, reversed Justice Evans' denial of the motion to renew and modified Justice Evans' orders to the extent of imposing a sentence of thirty days incarceration.

The United States Supreme Court has held that a defendant in a criminal contempt proceeding is entitled to all fundamental procedural protections. See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); United States ex rel. Vuitton v. Karen Bags Inc., 592 F.Supp. 734 (S.D.N.Y.1984), aff'd sub nom., United States ex rel. Vuitton v. Klayminc, 780 F.2d 179 (2d Cir.1985). Such procedural protections include a finding of guilt beyond a reasonable doubt, In re Weiss, 703 F.2d 653, 662 (2d Cir.1983), and that "requisite intent was present." In re Irving, 600 F.2d 1027, 1037 (2d Cir.1979). When the contempt is committed in the face of the court, the defendant is protected by a reduced standard of due process. See United States v. Lumumba, 741 F.2d 12 (2d Cir.1984). This, however, is not the situation in the instant petition. Thus, this case, although raised in an objection to the Magistrate's report and recommendation, is inapposite to the issues addressed in Sassower's petition.

Every Appellate Division in the State of New York has recognized the significance of Bloom v. Illinois. See N.A. Development Co. v. Jones, 99 A.D.2d 238, 242, 472 N.Y.S.2d 363 (1st Dep't 1984); Holtzman v. Beatty, 97 A.D.2d 79, 82, 468 N.Y.S.2d 905 (2d Dep't 1983); Ingraham v. Maurer, 39 A.D.2d 258, 259, 334 N.Y.S.2d 19 (3rd Dep't 1972); State University v. Denton, 35 A.D.2d 176, 181, 316 N.Y.S.2d 297 (4th Dep't 1970). In Ingraham v. Maurer, 39 A.D.2d at 259, 334 N.Y.S.2d 19, the Court acknowledged, after citing Bloom, "that a criminal contempt proceeding is a criminal proceeding to which the basic fundamentals are applicable to the same extent as in any other criminal trial. While the Bloom case was directed solely at the issue of the right to a jury trial, it, nevertheless, equates the contempt proceeding with an ordinary criminal proceeding." In N.A. Development Co., 99 A.D.2d at 242, 472 N.Y. S.2d 363, The Appellate Department First Department, after citing Bloom, acknowledged that criminal contempt must be proven beyond a reasonable doubt. Accord County of Rockland v. Civil Service Employees Association, Inc., 62 N.Y.2d 11, 14, 475 N.Y.S.2d 817, 464 N.E.2d 121 (1984).

In finding Sassower guilty, the Referee based his report entirely on the papers before him. There was no evidentiary hearing or trial. There is no indication that the determination of guilt was based on a finding that the evidence proved petitioner's guilt, including the requisite intent, beyond a reasonable doubt. Further, the Referee failed to take into consideration the constitutional requirements of non-summary criminal contempt proceedings.

Accordingly, this Court adopts the findings and recommendations of Magistrate Gershon, and the petition is hereby granted.

SO ORDERED.

REPORT AND RECOMMENDATION

Nov. 24, 1986

NING GERSHON, United States Magistrate:

In this habeas corpus petition brought pursuant to 28 U.S.C. § 2254, petitioner George Sassower, pro se, challenges a term of incarceration (thirty days) imposed by the Supreme Court of the State of New York, Appellate Division, First Department, on a finding that petitioner was guilty of sixty-three counts of criminal contempt. In re Jerome Barr v. Sassower, 121 A.D.2d 324, 503 N.Y.S.2d 392 (1st Dept. 1986). Sassower, an attorney, claims that his conviction and incarceration without a trial for non-summary criminal contempt violated his constitutional right to a trial. He also claims that he was subjected to double jeopardy and that the Referee, who made the contempt finding, and the Appellate Division, which imposed the sentence, were disqualified from acting. The petition was referred to me for report and recommendation by the Honorable David N. Edelstein, District Judge.

Petitioner's appeal to the New York Court of Appeals was dismissed "upon the ground that the order appealed from does not finally determine the proceeding...." In the Matter of Barr v. Sassower, 68 N.Y.2d 807, ___ N.Y.S.2d ___, 498 N.E.2d 437 (1986). Although the Court of Appeals dismissed petitioner's appeal without reaching the merits, petitioner fairly presented to that Court the same factual and federal constitutional claims he raises here. That the Court of Appeals declined to hear the appeal from the criminal contempt finding which led to petitioner's incarceration, apparently because the underlying civil action was not final, does not foreclose federal review of that incarceration, which is presently ongoing. The State's highest court was given the opportunity to address the claim. Whether or not it chose to do so, the comity rationale of the exhaustion requirement has been met. I find that petitioner Sassower has exhausted his state remedies. Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc).¹ For the reasons set forth below, I recommend that the petition for a writ of habeas corpus be granted.

The Special Referee relied upon the following orders: On February 1, 1982, New York State Supreme Court Justice Sinclair issued an Order disqualifying petitioner Sassower, an attorney, from appearing as counsel for a Mr. Raffe in "all other actions or matters wherein George Sassower, Esq. represents an interest adverse to ... Eugene Dann, Robert Sorrentino and Puccini Clothes, Ltd." Report of the Special Referee (Report), p. 4 (Annexed as Exh. B to Weissman Afft.) quoting Justice Sinclair's Order. Justice Ira Gammerman issued an Order on January 23, 1985, permanently enjoining petitioner and Hyman Raffe from "filing or serving, or attempting to intervene in or initiate, in any court, tribunal, agency or other forum of this State, any lawsuit, proceeding, investigation or other adversary matter, and from making or filing a complaint, grievance or correspondence with a professional disciplinary or grievance committee the subject matter of which arises out of or relates to" nine categories enumerated by Justice Gammerman which collectively covered all parties, entities and litigants involved in the multitude of actions previously instituted by either petitioner or Hyman Raffe. Annexed as Exh. D to Weissman Afft.²

On January 30, 1985, Lee Feldman, the court-appointed receiver for Puccini Clothes, Ltd., brought a motion to punish petitioner for 64 counts of criminal contempt of court on the grounds that petitioner had repeatedly violated the Orders of Justices Sinclair and Gammerman. By Order of Supreme Court Justice Martin Evans, dated April 5, 1985, the Receiver's motion was referred to Special Referee Donald Diamond. According to Referee Diamond, petitioner's "not guilty" defense raised in his Affidavit in Opposition to the Motion was "tantamount to a general denial of the allegations contained in the petition...." Report, pp. 14-15. The Referee found that petitioner's "not guilty" defense "does not create a disputed issue requiring a hearing." Report, p. 15. According to Referee Diamond, "no hearing" was "held for a confluence of reasons." Report, p. 5. Petitioner failed to allege any facts "disputing the detailed charges made by movant"; "the violations of the orders alleged to constitute contempt are matters that are documented by the filing of court papers and matters that appear on the record, in court proceedings"; and petitioner served Referee Diamond "with an answer to the complaint" in a proceeding pending before the Departmental Disciplinary Committee in which petitioner asserted that "he has the right to ignore the disqualification order...." Report, pp. 7, 8, 9. Based on this, Referee Diamond found that "the complaint made by the receiver in the disciplinary proceeding parallels those raised on this motion. Mr. Sassower's answer to that complaint establishes there is no need to hold a...