State v. Vasky

• Decision Date: 24 June 1985
• Citation: 495 A.2d 1347,203 N.J.Super. 91
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Rudolph VASKY, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 91

203 N.J.Super. 91

495 A.2d 1347

STATE of New Jersey, Plaintiff-Respondent, v. Rudolph VASKY, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 2, 1985.

Decided June 24, 1985.

Lawrence Friedman, Orange, for defendant-appellant.

Caryn Spindell Granofsky, Asst. Prosecutor, for plaintiff-respondent (George L. Schneider, Essex County Prosecutor, attorney; Marc J. Friedman, Asst. Prosecutor, of counsel and on brief).

Before Judges MORTON I. GREENBERG and O'BRIEN.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Defendant appeals from two convictions of contempt in the face of the court upon which he was fined $250 for the first conviction and sentenced to serve 15 days in jail on the second conviction. We affirm the convictions but reverse and remand as to the sentence imposed on the second conviction.

The events out of which the contempt convictions arose occurred during the course of a hearing before the law division on defendant's appeal from his conviction of an offense in a municipal court. The appeal was de novo on the record made below. See R. 3:23-8(a). Although defendant had filed his appeal pro se, he was represented at the hearing by an experienced attorney. Counsel had filed a brief on behalf of defendant in which he asserted that the record below was totally unintelligible and that defendant had been deprived of his right to have Judge McDonald called as a witness. The Law Division judge hearing the appeal had directed the attorneys ¹ to address their arguments to those two issues first. At this point defendant interrupted the proceedings. When directed by the trial judge to sit down, and by his attorney to be quiet, defendant refused. The trial judge recessed the court.

When court reconvened, the trial judge said to defendant:

Mr. Vasky, stand up. Mr. Vasky, one of the difficulties that the municipal court has, as best I can understand, in reading this transcript, was constant interruption by yourself in connection with the proceedings before the municipal court. I am not going to permit that to occur. I tell you now, sir, there's a sergeant from the sheriff's department sitting in this courtroom at my instruction. If you utter one word out of turn, if you act at all out of turn, your bail will immediately be revoked and you will be jailed. Take your seat, take your seat, take your seat.

Notwithstanding this admonition, defendant persisted and then stated, "I am discharging my attorney. I'm going pro se on this." To his attorney, defendant said:

Mr. Friedman, you are hereby discharged. Mr. Friedman, you are discharged, you understand? You are discharged. I am going pro se on this, because I have a constitutional right to defend myself. I have a constitutional right to subpoena a witness.

This was followed by an extensive confrontation between defendant and the trial judge. Notwithstanding the judge's entreaties to defendant to be quiet he continued his conduct and another recess was taken.

On this occasion when the court reconvened, the trial judge stated:

Mr. Vasky, please stand. Mr. Vasky, I find that your action in refusing to obey the court's order is in direct contempt in the face of the Court. I find you guilty of that contempt. Mr. Vasky, I'll hear you on the punishment for that contempt.

Defendant then spoke extensively on his constitutional rights and his right to defend himself, stating that no sentence should be imposed since he had not done anything wrong. At one point he said:

Judge, the question whether there is to be a penalty--you have stated no reason of finding--Well, you stated reasons which are (indiscernible). These reasons are not bona fide reasons. This is nonsense. You got insulted because I did not obey your assistant when he told me to shut up. You have no right to tell someone to be quiet because I'm in a court of law, and in a court of law every defendant has the right to defend himself. Whatever I acted, I acted in the belief that you violated my constitutional rights. That's the reason why I raised my voice; that's the reasons why I called you names; because you had violated my constitutional rights.

On this first contempt conviction the trial judge imposed a fine of $250 and advised defendant of his right to appeal.

Since defendant pursued the same type of conduct, the trial judge again cautioned him:

I say this to you, Mr. Vasky, once more. I want you to take your seat and I do not want you to interrupt this Court. If you do, if you stand up, if you interrupt this Court's proceeding, you give me no other alternative but to again contemplate holding you in contempt. If you wish to abide by that--I know you object to it, sir, but I'm saying that this is what the Court compels, and I'm asking you to take your seat.

Defendant persisted in his conduct, saying that he would obey the judge and not interrupt provided the judge would guarantee that if his municipal court conviction was affirmed he would not be jailed pending appeal. The trial judge refused to give such a guarantee. Furthermore, the trial judge refused to accept defendant's contention that he wished to discharge his attorney and argue the case pro se. Defendant then began shouting and making extreme statements, i.e.:

I will not give up my constitutional right. Shoot me; shoot me in the head. I will not give up my constitutional rights.

The trial judge cleared the courtroom, again held defendant in contempt and offered defendant the opportunity to speak as to the sentence to be imposed for this contempt. Defendant continued his position, saying things such as, "This is silly. There cannot be a finding of guilty because I did nothing that would warrant a finding of guilty." On the second conviction of contempt the trial judge imposed a sentence of 15 days in jail. After conferring with his attorney, defendant agreed to remain seated without interruption, saying: "Yes, I will, but I want to say on the record, I do this under protest."

Argument on the municipal appeal continued uninterrupted. When argument was completed, the trial judge reversed and remanded the case to the municipal court pursuant to R. 3:23-8(a) because of the confusing and unintelligible transcripts. The trial judge then heard defendant's counsel with respect to the two contempt convictions, refused to change the convictions or the sentences imposed and directed that defendant be arrested and incarcerated. The court also refused counsel's application that defendant be permitted to perform community service or to serve his sentence in the evenings and on weekends.

At about 4 p.m. on January 10, 1985, defendant was incarcerated. On the morning of January 11, 1985, he was transferred to the Essex County Correctional Center in Caldwell. That morning his attorney again made application to the trial judge to reconsider the contempt convictions and sentences imposed. The trial judge questioned the attorney's appearance on behalf of his client since he had not spoken on behalf of defendant during the colloquy between the trial judge and defendant leading to the contempt convictions. However, the attorney had continued to argue the appeal at the trial judge's direction. The trial judge first made a suggestion that the attorney might be applying to have defendant committed for observation, but when the attorney made such an application the trial judge denied it, concluding that defendant was not dangerous to himself nor to others. Counsel then sought a stay of the incarceration which was denied. His application for bail pending appeal was also denied pursuant to R. 2:5-1(a), since a notice of appeal had not yet been filed. Later that day a handwritten notice of appeal was filed by the attorney, and the trial judge fixed bail in the amount of $1,000 ² which was posted in cash.

Pursuant to R. 1:10-1, the trial judge prepared an order of contempt reciting the facts and containing a certification by him that he saw or heard the conduct constituting the contempt. In the order, the judge noted that defendant had filed his notice of appeal from the municipal court conviction, upon which he had been sentenced to 120 days incarceration, pro se, but that he was represented by counsel in the Law Division. The trial judge also noted that when he called the first recess after the tape-recording machinery had been turned off, he heard defendant shout to the court, "You are a scumbag" and "You are all scumbags." The judge explained that he did not find defendant guilty of contempt for making those statements but "they are included in these findings of fact in order that the aura in the Courtroom may be more clearly demonstrated." An "Order to Detain/Remand" prepared by the court clerk and signed by the trial judge recites the conviction of contempt of court and imposition of a term of 15 days at the Essex County Jail Annex and that there be "no credit for good behavior."

A contempt committed in the presence of a judge "may be adjudged summarily by the judge without notice or order to show cause." R. 1:10-1. There is no question that a defendant may be convicted of contempt of court for disrupting proceedings. See Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971); State v. Gonzalez, 134 N.J.Super. 472, 475, 341 A.2d 694 (App.Div.1975), mod. 69 N.J. 397, 354 A.2d 325 (1975). "[A] criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam. * * * A courtroom is a hallowed place where trials must proceed with dignity." Illinois v. Allen, 397 U.S. 337, 351, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353, 363 (1970) (Douglas, J. separate opinion). "To allow the disruptive activities of a defendant * * * to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very process that the Constitution itself prescribes." Id. at 350, 90 S.Ct. at 1064,...