On appeal from Superior Court of New Jersey, Law Division, Camden County whose opinion is reported at 204 N.J. Super. 300 (Law Div. 1985).
Dreier, Shebell and Stern.
Defendant has appealed from a contempt judgment of the Law Division entered under R. 1: 10-1, authorizing a summary punishment for contempt in the presence of the court, without the necessity of notice or an order to show cause. The comprehensive opinion of Judge Weinberg has been reported at 204 N.J. Super. 300 (Law Div.1985). Insofar as the opinion explains Judge Weinberg's reasons for adjudging defendant in contempt, we affirm substantially for those reasons.
There are, however, two issues not addressed in the opinion but which require further discussion. The first is whether the trial judge properly determined that the misstatements of defendant constituted a contempt in the presence of the court punishable in a summary manner, as opposed to a contempt to be prosecuted on an order to show cause before a different judge pursuant to R. 1:10-2 through 4. The second issue concerns the punishment assessed by the trial judge, 90 days in jail to be served during 45 consecutive weekends. We will treat these issues in order.
When the contempt is in the presence of the court, the judge may act summarily without notice or order to show cause. R. 1:10-1. On other occasions the proceedings shall be on notice and on an order for arrest or an order to show cause. R. 1:10-2. In addition, the matter may not be heard by the judge allegedly offended, except with the consent of the person charged. R. 1:10-4.
The reasons for notice and hearing for a contempt occurring outside the presence of the court 'are, first, that there is no need to deal so abruptly with an offense which does not constitute an obstruction within the courtroom itself, and second, that since the court does not know by its own senses all of the facts constituting the offense, there must be a trial to adduce them.' In re Contempt of Carton, supra, 48 N.J. [9,] 22 .
In this case defendant has not raised the issue of whether the contempt hearing should have been heard by Judge Weinberg or by some other judge, and we further note that the contempt hearing was continued for approximately four weeks, during which time defendant raised no objection to Judge Weinberg's continued participation. Under R. 1:10-4 consent of the party charged obviates the need for a new judge to hear the matter, and such consent can be inferred from defendant's lack of objection. We further note that defendant's explanations concerning the contempt, when separated from the substantive testimony warranting the vacation of the settlement, related solely to defendant's state of mind when he made the apparently false statements quoted in the Law Division opinion. As noted in a different context in In re Yengo, supra:
Where the explanation is clearly inadequate, the need to maintain the authority of the court should predominate. The offense should be treated as a direct contempt. [84 N.J. at 128].
See also In re Hinsinger, 180 N.J. Super. 491, 496 (App.Div.1981). The evident discrepancies between defendant's statements at the settlement hearing and in his affidavit and his testimony at the motion and contempt hearings would make any explanation plainly inadequate.
Where, as here, a summary contempt is proper, the defendant is entitled to show at the summary hearing that he did not act with the requisite mens rea. In the matter of Contempt of Carton, 48 N.J. 9, 21 (1966); In re Hinsinger, supra, ...