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SASSOWER v. SHERIFF OF WESTCHESTER CTY.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 4, 1986

GEORGE SASSOWER, Petitioner,
v.
THE SHERIFF OF WESTCHESTER COUNTY, Respondent

The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM AND ORDER

EDELSTEIN, District Judge :

Petitioner, pro se, brought a habeas corpus action pursuant to 28 U.S.C. Section 2254 to challenge a term of incarceration of thirty days imposed for his conviction on sixty-three counts of criminal contempt. *fn1" This court referred this habeas corpus petition to Magistrate Nina Gershon on October 3, 1986. On November 24, 1986, Magistrate Gershon held a hearing on this matter and by report and recommendation also dated November 24, 1986, recommended that the petition for the writ be granted. This court, after de novo review and consideration of the objections to the Magistrate's report, adopts the findings and recommendation of the Magistrate.

 The petitioner, George Sassower, was found guilty of sixty-three counts of non-summary criminal contempt by a New York State Special Referee. The contempt arose from claims that the petitioner, an attorney, continued to serve pleadings in a number of civil proceedings after being ordered not to do so by Justices Sinclair and Grammerman of the New York Supreme Court. On January 30, 1985, Lee Feldman, the court appointed receiver for a party to these civil proceedings, moved to have Sassower punished for contempt. The matter was referred to Special Referee Donald Diamond by Justice Evans of the New York Supreme Court. Diamond, without conducting an evidentiary hearing or a trial, found Sassower guilty of sixty-three counts of non-summary criminal contempt and recommended that Sassower be fined 250 dollars for each offense and be confined for thirty days.

 Justice Evans adopted the Referee's findings of guilt but denied, with leave to renew, the recommendation that a fine and jail sentence should be imposed. On January 21, 1986, Justice Evans denied a renewed motion to confirm the referee's report and to punish Sassower for contempt. The Appellate Division, First Department, however, reversed Justice Evans' denial of the motion to renew and modified Justice Evans' orders to the extent of imposing a sentence of thirty days incarceration.

 The United States Supreme Court has held that a defendant in a criminal contempt proceeding is entitled to all fundamental procedural protections. See Bloom v. Illinois, 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477 (1968); United States ex re. Vuitton v. Karen Bags Inc., 592 F. Supp. 734 (S.D.N.Y. 1984), aff'd sub nom., United States ex rel. Vuitton v. Klayminc, 780 F.2d 179 (2d Cir. 1985). Such procedural protections include a finding of guilt beyond a reasonable doubt, In re Weiss, 703 F.2d 653, 662 (2d Cir. 1983), and that "requisite intent was present." In re Irving, 600 F.2d 1027, 1037 (2d Cir. 1979). When the contempt is committed in the fact of the court, the defendant is protected by a reduced standard of due process. See United States v. Lumumba, 741 F.2d 12 (2d Cir. 1984). This, however, is not the situation in the instant petition. Thus, this case, although raised in an objection to the Magistrate's report and recommendation, is inapposite to the issues addressed in Sassower's petition.

 Every Appellate Division in the State of New York has recognized the significance of Bloom v. Illinois. See N.A. Development Co. v. Jones, 99 A.D.2d 238, 242 (1st Dep't 1984); Holtzman v. Beatty, 97 A.D.2d 79, 82, 468 N.Y.S.2d 905 (2d Dep't 1983); Ingraham v. Maurer, 39 A.D.2d 258, 259, 334 N.Y.S.2d 19 (3rd Dep't 1972); State University v. Denton, 35 A.D.2d 176, 181, 316 N.Y.S.2d 297 (4th Dep't 1970). In Ingraham v. Maurer, 39 A.D.2d at 259, the Court acknowledged, after citing Bloom, "that a criminal contempt proceeding is a criminal proceeding to which the basic fundamentals are applicable to the same extent as in any other criminal trial. While the Bloom case was directed solely at the issue of the right to a jury trial, it, nevertheless, equates the contempt proceeding with an ordinary criminal proceeding." In N.A. Development Co. 99 A.D.2d at 242, The Appellate Department First Department, after citing Bloom, acknowledged that criminal contempt must be proven beyond a reasonable doubt. Accord County of Rockland v. Civil Service Employees Association, Inc., 62 N.Y.2d 11, 14, 475 N.Y.S.2d 817, 464 N.E.2d 121 (1984).

 In finding Sassower guilty, the Referee based his report entirely on the papers before him. There was no evidentiary hearing or trial. There is no indication that the determination of guilty was based on a finding that the evidence proved petitioner's guilt, including the requisite intent, beyond a reasonable doubt. Further, the Referee failed to take into consideration the constitutional requirements of non-summary criminal contempt proceedings.

 Accordingly, this Court adopts the findings and recommendations of Magistrate Gershon, and the petition is hereby granted.

 SO ORDERED

 Dated: New York, New York, December 4, 1986.


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