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State v. Gonzalez

Decided: June 18, 1975.


Kolovsky, Lynch and Allcorn. The opinion of the court was delivered by Lynch, J.A.D.


[134 NJSuper Page 473] Defendant appeals from a conviction for receiving stolen property and from two convictions for contempt of court. He was sentenced to two consecutive six-month sentences on each of the contempt charges and to an indeterminate term at Yardville on the criminal charge, the latter sentence to be served consecutively to the contempt sentences.

On appeal he first contends that, since the contempt sentences aggregate more than six months, he was entitled to a jury trial and the summary findings and imposition of sentences by the judge below were therefore illegal. Secondly, defendant contends that he was denied effective assistance of counsel by the failure of his defense counsel to assist him during the contempt citations. Lastly, he contends that the sentences were manifestly excessive, unduly punitive and an abuse of the sentencing court's discretion.

On September 9, 1974 defendant entered a plea of guilty to a charge of receiving stolen property, which plea was accepted by the trial judge once the factual basis therefor had been established. The alleged contempts occurred during a subsequent sentencing proceeding. Defendant asked the judge that he be placed "in some kind of program," rather than being confined to Yardville. He claimed that it had been his understanding that by pleading guilty he would be placed on probation. The judge nevertheless sentenced defendant to an indeterminate term at Yardville. When the judge advised defendant that he had a right to appeal, defendant uttered certain vulgarities concerning "all" involved but particularly concerning his defense counsel. The judge immediately held him in contempt of court for his actions and sentenced him to the Mercer County Workhouse for a period of six months. Defendant then directed additional scurrilous remarks to the court, to which the judge responded: "That is another contempt. You are sentenced to the Workhouse for a period of an additional six months." Defendant continued to direct obscenities and implied threats to the court, and the matter was concluded.

On this appeal the acting prosecutor filed a brief in which it was conceded that the imposition of the sentences totalling more than six months was in error. Thereafter, the Attorney General of New Jersey filed another brief which, contrary to the prosecutor's position, contended that the separate six-month sentences were not improper. Since

two briefs had been filed on behalf of the State, the Attorney General requested that his brief be withdrawn, unless this court deemed it appropriate that it be considered on an amicus curiae basis. We conclude that the latter is the appropriate procedure and it is ordered that the Attorney General's brief be accepted as that of amicus curiae.

There is no question that a defendant may be convicted for contempt of court for disrupting proceedings by the use of improper language directed to the court or to an attorney. Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971); State v. Fisher, 115 N.J. Super. 373, 377 (App. Div. 1971).

In In re Callan, 122 N.J. Super. 479 (Ch. Div.), aff'd 126 N.J. Super. 103 (App. Div. 1973), rev'd on other grounds 66 N.J. 401 (1975), it was said:

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 otherwise tends to bring the authority and 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. In re Bozorth, 38 N.J. Super. 184, 188 (Ch. Div. 1955); In re Clawans, 69 N.J. Super. 373 (App. Div. 1961), cert. den. 36 N.J. 296 (1962); 17 Am. Jur. 2d, Contempt, § 3 at 6 (1964); 17 C.J.S. Contempt § 2 at 5, § 25 at 66 (1963). [at 494].

Moreover, it has been held that 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 (1925); In re Oliver, 333 U.S. 257, 275, 68 S. Ct. 499, 92 L. Ed. 682 (1947); see also Taylor v. Hayes, 418 U.S. 488, 497, 94 S. Ct. 2697, 2702, 41 L. Ed. 2d 897, 907 (1974); Groppi v. Leslie, 404 U.S. 496, 503-504, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972); Mayberry v. Pennsylvania, supra, 400 U.S. at 463, 91 S. ...

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