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October 21, 1999

1999.10.21: Matter of Levine v. Recant

Filed under: Indigent Defense — nyclaw01 @ 1:14 pm

NYLJ October 21, 1999

Supreme Court, New York County

Matter of Levine v. Recant


Justice Allen


A calendar call on a busy day is the legal equivalent of a three ring circus. With so much at stake and so little time to resolve each case, a certain amount of tension in the courtroom is inevitable. Although a general sense of “order in the court” does prevail, sometimes emotions run high and untoward exchanges take place. This case involves one such incident and raises the difficult question of how far a disgruntled attorney can go before his open criticism of a judge constitutes a summary contempt of court. In legalese, the attorney is now the petitioner in this Article 78 proceeding, and he seeks to vacate the judge’s finding of contempt. He also seeks to invalidate the 10 day jail sentence she imposed. The judge, as the respondent, cross moves to dismiss the petition.

The basic facts may be stated as follows. On April 2, 1999, Judge Donna Recant presided over the combined calendars for the court parts known as AP 1 and AP 7 in Manhattan Criminal Court. From the record, it appears to have been a typical day: more than 100 cases were scheduled to be called. When she took the bench, the cavernous courtroom soon became crowded with attorneys, litigants and spectators.

At some point during the morning session Arnold Levine, an attorney with the Legal Aid Society, entered the courtroom to check on one of his cases. While he was so occupied, two of his junior colleagues at Legal Aid made appearances on their cases. Mr. Levine felt that Judge Recant treated these inexperienced attorneys roughly. A reading of the transcript of the morning’s cases reveals that the judge moved rapidly through the calendar, and that she showed some impatience with attorneys whom she believed were causing delay.

At the outset of the incident at issue, the judge was hearing another case and Mr. Levine was talking with a group of colleagues just outside the well. Among other things he was advising them to order minutes of the cases on which they had just appeared. When the overall noise level rose, as it often does in criminal court, the judge asked for quiet. She mentioned Mr. Levine by name and directed him to sit quietly or leave the courtroom. She may have used the phrase “. . . or better yet, leave the courtroom.” Mr. Levine, who was still standing, replied in substance, “I’m leaving. I can’t stand what’s going on in here.” She heard his words without difficulty.

As Mr. Levine then began to walk toward the rear exit of the courtroom, Judge Recant advised him to remain. He complied and sat quietly while she devoted her attention to the case at hand. When that case was completed, the judge directed Mr. Levine to come into the well. Upon his arrival, she told him that his remark had been contemptuous and that he would be held in contempt if he did not offer an immediate apology. After alluding to prior dealings with Mr. Levine (“That is the last time this is going to happen”) she concluded by saying,”You made a rude remark which you do not have the right to do”. In reply, Mr. Levine uttered the following words: “Do you have the right to do that?” Judge Recant responded “That is it. Take the bench. You are in contempt, sir.”

Court officers handcuffed Mr. Levine and seated him on one of the prisoner benches located inside the well. The call of the calendar continued while the contempt papers were prepared. After an hour or so, two of Mr. Levine’s senior colleagues, Ms. Unger and Ms. Hendricks, came to his aid. After conferring briefly with him, they spoke to the judge in chambers.

A short time later, the clerk re called this case. With Ms. Unger and Ms. Hendricks representing Mr. Levine, Judge Recant informed him that she had held him in summary contempt based on the “insulting remarks”he had made when she had asked for quiet and again when she had given him an opportunity to apologize. She also stated that he had interrupted the proceedings for approximately 30 minutes. Finally, she asked Mr. Levine if he wished to speak before she imposed his sentence. His statement in full was: “Judge, I recognize that my action was disrespectful to the Court, and I apologize to the Court.”

The judge then sentenced Mr. Levine to 10 days in jail, adding that she did not find his apology to be sufficiently contrite. Later that day, Justice Herbert Adlerberg of Supreme Court granted a stay of the execution of the sentence.

To his credit, Mr. Levine now concedes that his conduct on that fateful day was inappropriate and contemptuous. He claims, however, that he should have been cited for a plenary contempt rather than a summary contempt. He further argues that Judge Recant was biased and should have referred this matter to another judge. Finally, he asserts that his 10day sentence was unduly harsh.


The law of summary contempt is ancient and has changed very little over the years. See, e.g. Katz v. Murtagh, 28 N.Y.2d 234. After all, a judge must be free to take immediate action to quell any contemptuous acts which occur in the courtroom. Absent the power to preserve and restore order, the court’s ability to function would be in jeopardy. Summary contempt is of course an extreme measure which may be resorted to only in highly unusual circumstances. See Doyle v. Aison,216 A.D.2d 634 (3rd Dept. 1995). A plenary contempt, on the other hand, is one that does not pose an immediate threat to the proper working of the court. Greater due process rights are accorded, therefore, to an individual who has been cited for a plenary contempt. See Greenpoint Savings Bank v. Miller, 233 A.D.2d 292 (2nd Dept.1996).

The exercise of the summary contempt power in the First Department is governed by Section 604 of the Special Rules Concerning Court Decorum. These rules are in turn derived from Judiciary Law§750(A). Simply put, a judge may hold someone in summary contempt when: 1) the offending conduct occurs in the presence of the court and2) it threatens to disrupt the proceedings or it tends to seriously undermine the dignity of the court. See Judiciary Law §750(A)(1)and Special Rules §604.2. There are no corresponding rules and.statutes for plenary contempt.

Here, Mr. Levine acknowledges that his remarks were made during the court’s sitting and in its immediate view and presence. Nor does Mr. Levine offer any dispute that his initial remark as he was leaving the court (“I can’ t stand to see what’s going on in here.”) was contemptuous or insolent. Indeed, it would strain credulity to argue that those words were not “intended to impair the respect due the court’s authority.’’ Mr. Levine does contend, however, that this remark, while rude, was not sufficiently disruptive of the court proceedings to require summary contempt and that the judge did not follow the strict procedural requirements necessary to apply it. In making these arguments, Mr. Levine presents an overtechnical view of the law and ignores the true extent of his own transgression.

As noted, summary contempt is a drastic action which can be exercised only in exceptional circumstances. This has never been interpreted, however, to require an objective demonstration of absolute physical necessity. Rather, in reviewing its use, the courts have recognized that a modicum of reasonable discretion must be afforded to the presiding judge. In part, this is simply because in determining the seriousness of the situation, the presiding judge has a unique vantage point which cannot be duplicated on review. It is also because, as the First Department noted in Brostoff v. Berkman, 170 A.D.2d 364 (1991),aff’d, 79 N.Y.2d 775, “the presiding Judge. . . possesses the authority to govern the functioning of the court. Moreover, it is the Judge’s responsibility to uphold order and decorum in the court. In that connection, it is within the domain of the Judge to regulate what occurs in his or her courtroom. . .” Thus in applying the law of contempt, some allowance has to be made for differences in temperament and style among individual judges. It is of no great consequence, then, that some judges might have handled this whole incident differently. The same could be said of many of the reported cases in which summary contempt has been upheld.

Mr. Levine points out that, in contrast to calendar call cases such as Brostoff v. Berkman, supra and Kunstler v. Galligan, 168 A.D.2d146 (1st Dept. 1991), his misbehaviour did not involve disobeying a specific court order or any physical obstruction to the court proceedings. As indicated, he made his initial rude comment while obeying Judge Recant’s instruction to leave the courtroom. And when she ordered him to remain, he sat quietly while she completed the case that was before her. Thus he contends that the disruption, if any, was caused by her decision to take the matter up on the spot rather than by his misconduct.

This argument fails on several grounds. In the first place, actual physical disruption of the proceedings is not the only situation in which the use of summary contempt is appropriate. As set forth in the Special Rules referred to above, such contempt may apply to conduct which disrupts proceedings or to conduct which undermines the dignity and authority of the court. Moreover, “disruption” is defined broadly to include conduct intended to interfere with the dignity of the court. In the cases cited, Kunstler and Brostoff, the spoken defiance of the court’s authority was clearly a more serious issue than the limited interference with the court proceedings. And the invective used by Mr. Kunstler in addressing Judge Galligan (“You have exhibited what your partisanship is. You shouldn’t be sitting in court. You are a disgrace to the bench.”) was little more than a sophisticated version of Mr. Levine’s outburst,

As an attorney, Mr. Levine was of course under a special duty to treat the court with respect and to help maintain its dignity. Matter of Golub, 190 A.D.2d 110 (1st Dept, 1993); In re Markewich, 192A.D. 243 (1st Dept. Brostoff, supra. While Mr. Levine’s words may have lacked the descriptive power of Mr. Kunstler’s, they were also somewhat more gratuitous, since they were not uttered in the course of the representation of a client. And Mr. Levine spoke to a large audience which included spectators, court personnel, defendants, attorneys and several of Mr. Levine’s colleagues at the Legal Aid Society. It is quite possible that his junior colleagues were actually looking to him for advice an how to conduct themselves properly in Judge Recant’s courtroom.

Mr. Levine’s argument also must be rejected because he has focused exclusively on the one statement, “I can’t stand to see what’s going on here.” In fact, his rude behavior continued unabated when the judge brought him into the well and demanded an apology. Mr. Levine now characterizes his response there as an attempt to explain and defend himself. But his words were disrespectful and impertinent. When the judge concluded by telling him that he had “no right” to speak to her in that fashion, he answered with a question: “Do you have the right to do that?” His meaning was clear cut: that she was being rude to him.

At that point, Judge Recant was justified in holding Mr. Levine in summary contempt. He had been asked to leave the court, but he had been unable to do so without making a contemptuous remark. He had then been given a few minutes to consider his behaviour before being brought to the bench, where he had been given a chance to apologize. He not only had refused to recant but he also had responded with more insolence. The judge did not have to overlook his further misconduct and offer him another opportunity to explain himself.

With hindsight, one may question why Judge Recant brought forward an angry attorney and admonished him in no uncertain terms in front of packed courtroom. But whether she acted wisely in ordering him to apologize or risk contempt is not at issue. Even if a court’s order is misguided, an attorney is not free to disregard it and decide for himself how to proceed. Balter v. Regan, 63 N.Y.2d 630. Since she was obviously considering a contempt citation, she was required, under the Special Rules, to give Mr. Levine a fair warning that his continued misbehaviour could lead to a finding of contempt. Certainly her words provided that warning.

In arguing that his contempt was plenary rather than summary, Mr. Levine relies primarily upon Breitbart v. Galligan, 135 A.D.2d 323 (1st Dept. 1988). In Breitbart, a trial attorney made a highly insulting remark to the court in the course of an argument without the jury present. The judge found the attorney in contempt, but adjourned determination of punishment until after the completion of the trial. Thereafter, the trial proceeded without further incident to its completion two weeks later. At that time the attorney was cited for summary contempt. The First Department reversed, holding that there was an insufficient showing of the immediate need to extinguish a threat. The court noted that the trial had been able to resume promptly and that there was a lengthy adjournment for setting punishment as indicia that such immediacy was lacking.

The situation in this case is quite different. First, there is no indication in Breitbart that the contemptuous conduct was ongoing at the time the adjudication was pronounced. Also, as the First Department pointed out in Kunstler, supra, Breitbart involved a jury trial (with an absent jury)rather than a calendar call. Thus in Breitlart, unlike this case, the court did not have to be concerned with the effect of the contemptuous conduct on anyone other than the immediate parties. And, of course, while there was an adjournment in this case, it was only a matter of an hour or so, not two weeks.

The Kunstler case has, in fact, the scenario which this case most closely resembles. In both cases an experienced attorney engaged in deliberate verbal criticism of the judge at a calendar call. Both incidents were brief but seemingly required immediate action from the court to preserve its dignity. It should be noted, furthermore, that the reviewing court found Mr. Kunstler ‘s misconduct to be so egregious as to allow Judge Galligan to dispense altogether with a contempt warning.

Another New York case which provides guidance here is Katz v. Murtagh, supra. The petitioner in Katz was a spectator at a pre trial hearing in a criminal case. As the defendants were brought into the courtroom, members of the audience, including Mr. Katz, raised their arms while other spectators shouted “All power to the people.” Judge Murtagh brought Mr. Katz before the bench, warned him that he might be held in contempt, and asked him if he had anything to say, Mr. Katz responded “I don’t recognize this court as representing the people, and I therefore have no respect for this court, and will say what I feel like saying, because this is what I believe in,” Without further ado the judge found Mr. Katz in contempt. The Court of Appeals upheld the summary contempt citation, concluding that it was justified based on Mr. Katz’s response. True, the potential for disorder which confronted Judge Recant pales in comparison to the volatile situation in Judge Murtagh’s courtroom. Nevertheless, as in Katz and Kunstler, and unlike Breitbart, Judge Recant was faced with immediate contemptuous behavior and therefore had no reason to believe, at the time she made the adjudication, that the case could be adjourned in an orderly, decorous manner for hearing before a neutral judge

The events which took place after the finding of contempt do not negate its legitimacy. Mr. Levine points to the comment made by Judge Recant during her warning (“That is the last time this is going to happen”) as indicating that she had a pre existing view of him as disrespectful. True, the comment suggests that they were not on the best of terms. But those prior contretemps, whatever they entailed, would not mean that a finding of summary contempt based on what occurred that day was inappropriate. See Brostoff v. Berkman, supra. Unlike the Federal cases cited by Mr, Levine, Offutt v. United States, 348 U.S. 11, and Taylor v. Hayes, 418 U.S. 488, Judge Recant was not embroiled in an ongoing exchange of disparaging remarks with him which could have interfered with her ability to judge his acts.

Mr. Levine also contends that the passage of an hour between the adjudication of contempt and his sentencing indicates that the summary procedure was not needed. It is difficult to see why the mere fact that Judge Recant delayed sentencing until Mr. Levine’s attorneys could arrive and be heard would affect the clear record of what had previously occurred. The First Department’ s Special Rules do indicate a preference for imposing punishment at the time of the adjudication of contempt. But they specifically provide that “where the court deems it advisable the determination and imposition of punishment may be deferred following a prompt summary adjudication of contempt. . .” §604.2(a) (2). The Rules also recognize that a finding of summary contempt may in itself be sufficient to stop the offensive conduct.§604.2(c). To put off sentencing, and proceed with waiting calendar cases in the interim, would appear entirely appropriate in a case such as this, where the contempt is based on undermining the court’s dignity rather than physical interference with an ongoing trial.

But while I have concluded that Judge Recant was justified in finding Mr. Levine to be in summary contempt, the sentencing procedure followed by the judge was flawed. She decided, quite reasonably, that an immediate determination of punishment was not necessary or optimal for restoring order and decorum. Having done so, however, she should have taken some measures to ensure that this determination was carried out in an orderly and dignified manner designed to reduce the potential for spectacle or appearance of personal animosity. While the Special Rules do suggest a preference for setting punishment at the time of the summary adjudication, it does not follow that when the punishment phase is deferred, it should then be carried out in a hurried, summary manner.

In at least one aspect, Judge Recant did not comply strictly with the rules regarding punishment. §604.2(c) of the Special Rules provides:

Where a person is summarily adjudicated in contempt and punishment deferred and such person desists from further offensive conduct, the court should consider carefully whether there is any need for punishment for the adjudicated contempt.

The need for additional punishment was at least a question to be considered here. Following her finding of summary contempt, Judge Recant forced Mr. Levine to undergo the ignominy of being placed in handcuffs for an hour or so while she continued the normal business of the court. By all accounts, he did so quietly and without protest. Perhaps the handcuffing itself was a sufficient punishment, especially in light of the special consequences an attorney faces from a finding of contempt. As Chief Judge Judith Kaye has noted, citing U.S. v. Wendy, 575 F2d1025 (2nd Circ. 1978), a contempt on an attorney’s record can be”awesome in its implications”. It is likely to afflict the contemnor with a stigmia of antisocial behavior and to cause considerable professional problems if he seeks admission to other bars or to practice before federal agencies. Balter v. Regan, supra, (dissent).

The judge’s frank affidavit indicates, furthermore, that she did not give any consideration as to whether there was a need for more punishment. As she put it, the only question she had at the time of the punishment determination was whether Mr. Levine “should get his toothbrush or his checkbook”. When she concluded that his apology was inadequate, she then pronounced the 10 day jail sentence.

Admittedly, it is unclear whether strict compliance with the letter of the special Rules would have affected the determination of punishment. However, the punishment which did result is overly harsh and excessive. There is simply no rational basis in the record for finding it to be more appropriate than no additional punishment at all, Accordingly, the portion of Mr. Levine’s motion seeking to vacate his 10 day jail sentence is granted. In all other respects the motion is denied.

This constitutes the decision and order of this court.


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