N.Y. Comp. Codes R. & Regs. tit. 22 § 604.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 604.2 - Judicial exercise of contempt power

(a) Exercise of the summary contempt power.

(1) The power of the court to punish summarily contempt committed in its immediate view and presence shall be exercised only in exceptional and necessitous circumstances, as follows:

(i) Where the offending conduct either

(a) disrupts or threatens to disrupt proceedings actually in progress; or

(b) destroys or undermines or tends seriously to destroy or undermine the dignity and authority of the court in a manner and to the extent that it appears unlikely that the court will be able to continue to conduct its normal business in an appropriate way; and

(ii) The court reasonably believes that a prompt summary adjudication of contempt may aid in maintaining or restoring and maintaining proper order and decorum.

(2) Wherever practical punishment should be determined and imposed at the time of the adjudication of contempt. However, where the court deems it advisable the determination and imposition of punishment may be deferred following a prompt summary adjudication of contempt which satisfies the necessity for immediate judicial corrective or disciplinary action.

(3) Before summary adjudication of contempt the accused shall be given a reasonable opportunity to make a statement in his defense or in extenuation of his conduct.

(b) Exercise of the contempt power after hearing. In all other cases, notwithstanding the occurrence of the contumacious conduct in the view and presence of the sitting court, the contempt shall be adjudicated at a plenary hearing with due process of law including notice, written charges, assistance of counsel, compulsory process for production of evidence and an opportunity of the accused to confront witnesses against him.

(c) Judicial warning of possible contempts. Except in the case of the most flagrant and offensive misbehavior which in the court's discretion requires an immediate adjudication of contempt to preserve order and decorum, the court should warn and admonish the person engaged in alleged contumacious conduct that his conduct is deemed contumacious and give the person an opportunity to desist before adjudicating him in contempt. Where a person so warned desists from further offensive conduct, there is ordinarily no occasion for an adjudication of contempt. Where a person is summarily adjudicated in contempt and punishment deferred and such person desists from further offensive conduct, the court should consider carefully whether there is any need for punishment for the adjudicated contempt.

(d) Disqualification of judge. The judge before whom the alleged contumacious conduct occurred is disqualified from presiding at the plenary hearing or trial (as distinguished from summary action) except with the defendant's consent:

(1) if the allegedly contumacious conduct consists primarily of personal disrespect to or vituperative criticism of the judge; or

(2) if the judge's recollection of, or testimony concerning the conduct allegedly constituting contempt is necessary for an adjudication; or

(3) if the judge concludes that in view of his recollection of the events he would be unable to make his decision solely on the basis of the evidence at the hearing.

(e) Preference for appeals from criminal court contempt convictions. Any appeal by an attorney of his conviction for the misdemeanor of criminal contempt which is pending in any court in this judicial department, shall be granted a preference by the court.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 604.2