On appeal from the Superior Court, Law Division, Essex County.
Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.
[167 NJSuper Page 67] Appellant John Yengo, a member of the bar of this State, appeals from an order entered pursuant
to R. 1:10-1 adjudging him in contempt in facie curiae and fining him $500. The conduct constituting the gravamen of the offense was his unexcused absence from court for a two-day period during a protracted criminal trial of multiple defendants, one of whom, Leo Leone, he represented.
The primary contention Yengo makes on this appeal is that the alleged offense, if an offense at all, was not a contempt "in the actual presence of the judge" subject to the summary disposition power of the judge contemned but rather constituted a contempt requiring prosecution and hearing by another judge pursuant to R. 1:10-2 and R. 1:10-4.
The relevant facts are essentially undisputed. An Essex County indictment, encaptioned State v. Errico et al. , charged ten defendants with participation in an illegal gaming operation and the conspiracies by which it was conceived and conducted. Trial was expected to be both lengthy and difficult, both because of the number of defendants and consequently the number of lawyers whose daily participation would be required and because of the complexity of the proofs, particularly those arising out of an extensive electronic surveillance. Accordingly, when the trial actually commenced on February 14, 1978 the judge advised all counsel that in order to complete the matter as expeditiously and fairly as possible their prompt and continuous attendance at trial was imperative. Counsel were clearly instructed to avoid any involvement in or commitment to any other matter during the duration of the Errico trial and to advise all other courts before whom any might have business of that engagement. The import of these instructions was again repeated from time to time as the trial progressed. There can be no question of Yengo's awareness of them, particularly in view of his request of the trial judge that he advise another trial judge before whom Yengo was scheduled to appear of this trial commitment.
The trial continued without interruption or incident until Thursday morning, March 2, 1978. Because of the making of various motions not involving Yengo's client, the actual trial before the jury did not resume until mid-morning. At that time Yengo's absence was noted. The trial judge inquired of Yengo's client, Leone, as to his knowledge of Yengo's whereabouts. Leone then stated that he was aware that Yengo was not intending to be in court but that he had arranged for another lawyer to be present in his stead. Several of the other defense counsel confirmed their understanding that Yengo himself would be absent. Shortly thereafter a young attorney, a Mr. Burns, arrived in the courtroom and advised the court that he was "covering" for Yengo. Leone agreed to the representation on the record, and trial resumed with the cross-examination of the State's witness who had monitored the wiretap and who, apparently, was the critical witness as to Leone's involvement in the conspiracy. Burns chose not to cross-examine him.
The trial judge was concerned that Burns' untoward decision not to cross-examine the monitor might seriously jeopardize Leone's interests. Having assumed that Yengo's absence was to be of brief duration, the judge then interrogated Burns as to Yengo's whereabouts with the intention of requiring his immediate appearance. It was at that point that the trial judge was first made aware of the fact that Yengo had left the country the night before, was not due back until the following Monday and, despite Burns' general inexperience and his basic unfamiliarity with the case, had asked him to appear for him both that day and the next. The judge's concern for the integrity of Leone's trial was further compounded by the fact that on the following day a State's expert was scheduled to testify as to opinions based on facts adduced during the eight preceding trial days. The judge himself then undertook an investigation of Yengo's whereabouts, culminating in a telephone conversation with Yengo's daughter who advised that Yengo had gone on a four-day vacation to Bermuda and would return
on Sunday evening, and that she did not know where in Bermuda he could be reached. The judge then directed that the expert's testimony would have to await Yengo's return. On Monday, March 6, 1978, Yengo appeared in the courtroom and told the judge that he had had to attend to a business matter in Bermuda and had not felt, in view of his arrangement with Burns, that it was necessary to advise the court of his projected absence. The contempt citation followed, the judge concluded that
The action of John Yengo, Esq., in going to Bermuda for two court days in the third week of a five-week, complex wiretap gambling conspiracy case with ten defendants and a seventeen-member jury without prior notice and approval of the court and without leaving word as to where he could be reached, constituted a disruption in the Court proceedings, disobedience of the court order prohibiting involvement in other proceedings, a lack of respect for the Court, a lack of professional responsibility, as well as conduct prejudicial to the administration of justice.
We concur completely with the trial judge's assessment of Yengo's conduct and we have no doubt that it was indisputably and egregiously contumacious. We nevertheless are constrained to reverse the contempt citation because we are of the view, for the reasons hereinafter expressed, that an attorney's absence does not constitute a contempt in facie curiae and hence that an alleged contempt based on that charge must be prosecuted pursuant to R. 1:10-2 and R. 1:10-4. We are also constrained to recognize that contempt is a criminal offense. The fact that certain categories of contempt are susceptible to summary disposition does not mean that those categories are also susceptible to directed verdicts of guilt. We would be ...