On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Morton I. Greenberg and O'Brien. The opinion of the court was delivered by O'Brien, J.A.D.
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 R. 3:23-8(a). Although defendant had filed his appeal pro se, he was represented at the hearing by an experienced attorney. Counsel had filed a brief on behalf of defendant in which he asserted that the record below was totally unintelligible and that defendant had been deprived of his right to have Judge McDonald called as a witness. The Law Division judge hearing the appeal had directed the attorneys*fn1 to address their arguments to those two issues first. At this point defendant interrupted the proceedings. When directed by the trial judge to sit down, and by his attorney to be quiet, defendant refused. The trial judge recessed the court.
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. ...