State v. VaskyState v. Vasky
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
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
At about 4 p.m. on January 10, 1985, defendant was incarcerated. On the morning of January 11, 1985, he was transferred
Pursuant to
A contempt committed in the presence of a judge “may be adjudged summarily by the judge without notice or order to show cause.”
Moreover, a court may summarily convict and impose punishment for contempt, without any provision for notice or an opportunity to be heard, provided that the contemptuous conduct occurred in the immediate presence of the judge and was personally witnessed by him and that the conduct created “an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public” that if “not instantly suppressed and punished, demoralization of the court‘s authority would follow.” Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 395, 69 L.Ed. 767, 773 (1925); In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682, 695 (1948). However, since the power to punish directly inevitably diminishes the procedural due process accorded to the alleged contemnor, the power must be permitted only where necessary. Harris v. United States, 382 U.S. 162, 165, 86 S.Ct. 352, 354, 15 L.Ed.2d 240, 242 (1965). See also In Re Yengo, 84 N.J. 111, 122 (1980), cert. den. 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981).
The power of any court of this State to punish for contempt shall not be construed to extend to any case except the:
(a) Misbehavior of any person in the actual presence of the court;
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(c) Disobedience or resistance by any court officer or by any party, juror, witness or any person whatsoever to any lawful writ, process, judgment, order or command of the court.
In construing this statute, the court in In re Callan, 122 N.J. Super. 479, 494 (Ch.Div. 1973), aff‘d 126 N.J. Super. 103 (App.Div. 1973), rev‘d on other grounds 66 N.J. 401 (1975), noted:
A “contempt” is a disobedience of the court by acting in opposition to its authority, justice and dignity. It comprehends any act which is calculated to or tends to embarrass, hinder, impede, frustrate, or obstruct the court in the administration of justice, or which is calculated to or has the effect of lessening its authority or its dignity; or which interferes with or prejudices parties during the course of litigation, or which tends otherwise to bring the authority or administration of the law into disrepute or disregard. In short, any conduct is contemptible which bespeaks of scorn or disdain for a court or its authority.
Summary contempt convictions are reviewable on the facts as well as the law on appeal.
Essentially defendant contends that his conduct was not willful or deliberate, but rather the result of a sudden violent mental agitation. Even when a person commits contempt which directly insults the court, it must still be proven that he acted with criminal intent. The contemnor must be accorded the opportunity to attempt to show that he did not possess the requisite mens rea, but this may be done at the summary hearing. See In re Hinsinger, 180 N.J. Super. 491, 497 (App.Div. 1981). While it is true that the trial judge did not specifically say that defendant had the opportunity to dispel the presence of criminal intent, it is evident that he was afforded that opportunity. The judge couched that opportunity in terms of inviting defendant to address himself to the sentence to be imposed. The wide ranging remarks by defendant on both occasions addressed themselves primarily to his guilt and his intent, rather than to the sentence to be imposed. Furthermore, counsel for defendant was given the opportunity to address both the convictions and the sentences imposed. That defendant possessed the requisite intent is clearly demonstrated by the fact that he composed himself and ceased his interruptions of the court after the jail sentence was imposed.
We recognize that defendant faced a 120-day jail term as a result of his municipal court conviction. We also note the substantial amount of bail fixed pending his appeal of that conviction. Notwithstanding this apprehension and concern by defendant, he persistently refused to obey the lawful directions of the judge to sit down and be quiet. While we may agree with defendant that he had the right to discharge his attorney and to proceed pro se, it is evident in this case that the trial judge‘s refusal to recognize the discharge of his attorney was in an effort to protect defendant‘s rights, since the attorney had
We have carefully reviewed the record in this case and the findings of fact made by the trial judge, which we accept as our own. We find that the persistent refusal of defendant to accede to the directions of the trial judge constituted contempt in the face of the court and warranted his conviction for contempt. The second offense is all the more egregious since notwithstanding his being adjudged in contempt and a fine imposed, he continued his contumacious conduct in the face of the court. We therefore affirm both convictions. On the first conviction we impose a fine of $250 plus costs.
As noted, our duty on an appeal from a summary conviction for contempt is to try the matter de novo on the trial record upon the law and the facts, towards the end of adjudicating both guilt and punishment. See
The trial judge may have had knowledge as to these factors, but he made no findings to guide us in our de novo review of the sentence. The sentence imposed may be totally justified, but we cannot reach that conclusion on this record. We therefore remand to the trial judge for reconsideration of the sentence imposed in order that an inquiry may be made as to defendant‘s prior conduct and criminal record. Inquiry shall also be made as to his financial needs and those of his family and how they may be affected by his incarceration, to the end that consideration be given to service of a sentence on weekends and nights. We do not retain jurisdiction.