Although the dissent does not dispute that petitioner's conduct was contemptuous (see, dissent, at 152), the dissent, upon the basis of the authority of Matter of Breitbart v. Galligan ( 135 A.D.2d 323 [1st Dept 1988]) contends that there was no necessity for the respondent Justice to summarily punish petitioner.
The offending conduct at issue in this proceeding and the circumstances under which it took place provide ample basis for a "reasonable] belie[f] that a prompt summary adjudication of contempt may aid in maintaining or restoring and maintaining proper order and decorum" ( 22 NYCRR 604.2 [a] [1] [ii]). The brief one-day delay between petitioner's conduct and the contempt adjudication does not require a contrary conclusion under the circumstances of this case, where an immediate exercise of the contempt power, which would have required the court to give petitioner the opportunity to make a statement ( 22 NYCRR 604.2 [a] [3]), would have disrupted the trial even further and delayed a determination of the effect on the jurors of petitioner's conduct ( cf. Matter of Breitbart v Galligan, 135 AD2d 323, 325). There is no merit to petitioner's argument that the court should have recused itself.
The summary contempt adjudication was not warranted under the circumstances of this case. The petitioner's conduct did not disrupt or threaten to disrupt the proceedings nor did it destroy or undermine, or tend seriously to destroy or undermine, the dignity of the court so that the court was unable to continue to conduct its normal business in an appropriate way (see 22 NYCRR 701.2 [a]; Matter of Godosky v. LaTorella, 258 A.D.2d 461; Matter of Doyle v. Aison, 216 A.D.2d 634; Matter of Breitbart v. Galligan, 135 A.D.2d 323). Furthermore, the respondent failed to give any warning to the petitioner that his conduct was deemed to be contumacious prior to adjudicating him in contempt (see 22 NYCRR 701.4; Matter of Abramovitz v. LaTorella, 274 A.D.2d 514; Matter of Godosky v. LaTorella, supra), and the petitioner was given no reasonable opportunity to respond to the charge (see 22 NYCRR 701.2; Taylor v. Hayes, 418 U.S. 488, 496-500). The respondent's remaining contention is without merit.
Petitioner's attire, speech directed to spectators, gestures to the court and verbal ridicule would have warranted a contempt adjudication (see, Matter of Levine v. Recant, 278 A.D.2d 124, 718 N.Y.S.2d 173; People v. Keno, 276 A.D.2d 325, lv denied 96 N.Y.2d 760, 2001 N.Y. LEXIS 828). Here, however, deferral of the contempt finding and imposition of punishment evidence the lack of the immediacy which is a prerequisite for resort to summary contempt (Matter of Breitbart v. Galligan, 135 A.D.2d 323). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
We note that although petitioner's misconduct occurred in the presence of the jury, there is no evidence that any juror actually read the statement on petitioner's T-shirt or was affected by it in any way. In these circumstances, we hold that there was no necessity for respondent to summarily punish petitioner ( see, Matter of Breitbart v. Galligan, 135 A.D.2d 323). That the trial continued without further disruption before respondent used the summary contempt procedure gives rise to an inference of no immediacy ( see, Matter of Katz v. Murtagh, supra, at 239). Our holding is limited only to the propriety of the remedy used by respondent and should not be read as trivializing or condoning petitioner's misconduct.
Certainly respondent could not have been expected to be prepared to defend against the alleged contempt when it is not even clear at this point what the ground was which supported that determination. We further note that the record fails to reveal sufficient facts to justify a summary finding of contempt (see, Judiciary Law ยง 755; see also, Matter of Katz v. Murtagh, 28 N.Y.2d 234; Matter of Breitbart v. Galligan, 135 A.D.2d 323). Order reversed, on the law, without costs, matter remitted to the Family Court of Albany County for a hearing, upon proper notice, to determine whether respondent was in contempt of court. Kane, J.P., Mikoll, Levine, Harvey and Mercure, JJ., concur.
The purpose is to prevent the disruption or threatened disruption of the courtroom, and a delay in the adjudication of contempt and imposition of sanctions indicates that there is no immediate need for summary contempt in the first instance. ( See, Matter of Doyle v. Aison, supra; Matter of Breitbart v. Galligan, 135 A.D.2d 323 [1st Dept 1988].) For example, the verbal abuse of a Judge, including an accusation that he was a "'disgrace to the bench'", was held to be disruptive to a calendar call, and, therefore, properly the subject of a summary contempt order.
"700.3 Disruptive conduct defined. Disruptive conduct is any intentional conduct by any person in the courtroom that substantially interferes with the dignity, order and decorum of judicial proceedings" (and see, 22 NYCRR 604.1 [b], [c]; Matterof Breitbart v. Galligan, 135 A.D.2d 323 [for an interpretation of that First Department court decorum rule]). In determining what is conduct that can/or has disrupted courtroom decorum, it would seem that an affected court must employ an objective analysis, sifting the inadvertent innocent expression from other forms of individual or group expression.