On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 2007-063.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and LeWinn.
Defendant Rashidah N. Hasan appeals from the April 10, 2008 order of the Law Division finding her guilty of contempt of court following de novo review, imposing a $500 fine and placing her on probation for a period of one year with the condition that she perform sixteen hours of community service. For the reasons that follow, we affirm the finding of contempt but modify the sanction imposed.
Defendant is an attorney admitted to practice in New Jersey since 1989. She was retained to represent Dwayne A. Smith in Bloomfield Municipal Court on charges resulting from two motor vehicle stops on March 9 and 29, 2007. Defendant sought discovery in the municipal court concerning the race of individuals charged or arrested by the Bloomfield Police Department following motor vehicle stops. Defendant was provided with access to the Internal Affairs investigation concerning her client's two traffic stops; she was advised, however, that the other racial data which she sought were unavailable.
Trial on both charges commenced in municipal court on October 4, 2007. Bloomfield Police Officer Nicholas Rizzitello testified that on March 9, 2007, at 11:30 p.m., he and his partner, Officer Lutz, observed a car stopped by a house on Charles Street. As soon as the officers pulled behind the car, the driver "took off, drove away, . . . [and] was going in and out of streets driving close to other cars and accelerating faster than the speed of the road of the residential area." On at least five occasions, Rizzitello observed the car "[s]werving, . . . not maintaining his lane, to the side, to the other side, . . . [so] as to lose the patrol vehicle." After following the vehicle through several streets, the officers activated their flashing lights and pulled the vehicle over.
Both officers approached the vehicle, Rizzitello on the passenger side and Lutz on the driver's side. The officers advised Smith that he was being charged with "driving erratically." The officers returned to their vehicle to issue summonses "for a loud muffler and careless driving." While they were writing the tickets, Smith "jumped out of the car . . . in an aggressive manner." The officers instructed Smith to remain in his car; Smith, however, stated that he had to go to the bathroom. When the officers repeated that he should return to his car, Smith said, "I'm going to the bathroom, that's where I live, I'm going to the bathroom."
Officer Luca Piscitelli was involved in Smith's March 29 charges. On that date, Piscitelli was on patrol with Officer Lutz and, while stopped at a red light, observed what turned out to be Smith's vehicle traveling "at a high rate of speed[,] . . . passing other vehicles, and . . . [they] heard the loud muffler and looked at the muffler." The officers activated their lights and pulled Smith over. When asked to produce his credentials, Smith did not have his insurance card. Piscitelli issued Smith a summons for an uninsured vehicle. The officers then called for a tow truck to remove the vehicle. Smith became "irate" and claimed that the officers were out to get him . . . ." Piscitelli stated that as of the date of trial, he had not seen evidence that Smith had insurance for the vehicle. The prosecutor then stated that he believed "there [wa]s a card[,]" and that "counsel ha[d] brought a card."
When defendant attempted to cross-examine Piscitelli on the insurance card, the judge asked, "Well, what's the question? If you [have] proof of insurance, what are we doing here wasting all this time?" Defendant responded: "We're trying to give my client a fair hearing of his matter. We are not here to waste the time of the [c]court."
Defendant then briefly cross-examined Piscitelli and attempted to ask him whether he had stopped the vehicle because of the loud muffler or because of the speeding. After the judge sustained the prosecutor's objection to that question, defendant moved for dismissal of the charges, arguing that "[t]here [wa]s no showing of probable cause. The only ticket issued on that date was a no insurance ticket, and there was no reason to stop the vehicle on that date. There was no speeding ticket issued."
The judge responded that the police officers "used their discretion[,]" and stated to defendant, "I'm a little bit annoyed because I think you're making an argument that is entirely frivolous. . . . [H]e saw your client speeding . . . and there's no reason to stop the car?" Defendant reiterated that no speeding ticket had been issued and attempted to refer to the "history" of her client having been stopped two weeks earlier.
The judge reiterated that the officer "used his discretion." The following colloquy then ensued between the defendant and judge:
[DEFENDANT]: Based on the history of the -- I respect the [c]court, and I ask that the [c]court respect me in the way it addresses me.
THE COURT: I'm respecting you, ma'am, but I'm getting --
THE COURT: I'm getting -- I'm getting disrespected with this kind of a motion.
[DEFENDANT]: But you should not be raising your voice at me.
THE COURT: Well, sometimes --
[DEFENDANT]: No, it is not.
THE COURT: -- that's what you got to do in this life.
[DEFENDANT]: No, it is not. I have to act a certain way as an attorney before this [c]court.
THE COURT: Where's the proof of insurance, ma'am?
[DEFENDANT]: You have to act a certain way as a [j]udge before this [c]court.
THE COURT: Where's the proof of insurance, ma'am?
[DEFENDANT]: And I -- I want you to make a ruling on my motion.
THE COURT: Motion denied obviously.
THE COURT: And I'm going to sanction you --
[DEFENDANT]: For the record --
THE COURT: -- for a frivolous motion $100. Where's the proof of insurance?
[DEFENDANT]: And put that on hold until I make my appeal respectfully.
THE COURT: Hundred dollars sanction for a frivolous motion.
[DEFENDANT]: And I respectfully --
THE COURT: I have here what's called I guess D -- D-1 or D-2. Is that acceptable to the State at this point for the --
[PROSECUTOR]: It sure looks like good evidence of insurance for a 1995 Honda for the date in question. And if it had been presented that night, it wouldn't have --
THE COURT: We wouldn't go through all this.
[PROSECUTOR]: -- it wouldn't have been an issue.
[DEFENDANT]: I would ask that the
[c]court stay my sanction to give me an opportunity to appeal.
All right. This is the insurance part of this problem, on March 29, a charge of driving without insurance. We go through a whole trial when counsel was sitting there with proof of insurance, and --
[DEFENDANT]: 'Cause the issue of probable --
THE COURT: -- we waste a lot of time.
[DEFENDANT]: -- cause, Your Honor.
THE COURT: And I'm sanctioning the attorney $100 --
[DEFENDANT]: And he . . . does not want to plea[d] to something --
THE COURT: If you're not going to --if you're going to talk over me --
[DEFENDANT]: -- that he shouldn't plea[d] to.
THE COURT: -- there's going to be another sanction.
[DEFENDANT]: You're indicating he should plead to something that he feels that he was unjustly stopped for. That's what you're asking.
THE COURT: If he got a ticket for driving without insurance 'cause he didn't have possession of insurance, all he had to do was go to the police station and show them the insurance within 24 hours. It would be dismissed.
[DEFENDANT]: Respectfully, if the [c]court would have permitted this matter to be held in abeyance until Officer Lutz was present so that both -- all of these officers could be here at the same time and there could be testimony taken on what occurred in all of theses inciden[t]s, I don't believe the [c]court . . . would be issuing what it is . . . issuing today
THE COURT: All right. This matter is marked I think in the usual manner dismissed with court costs[,] $39 on the insurance charge.
THE COURT: I know we're getting a little bit -- we talk about loud mufflers. We talk about some loud conversation sometimes because we all get feelings or anger and outrage, including judges. When I hear frivolous arguments, I get . . . a sense of outrage, quite frankly.
In this case, I'm going to be fair to your client, ma'am, and mark it dismissed with usual court costs, $39. All ...