The opinion of the court was delivered by: Sand, District Judge.
Petitioner argues that the Due Process Clause requires
personal service of process to commence criminal contempt
proceedings. The New York Supreme Court, Appellate Term, First
Department, rejected petitioner's claim in a published
opinion:
Personal delivery of process, as a heightened
form of notice, is of course always preferable,
but due process does not require it in special
proceedings such as this one so long as the party
charged is notified of the accusation and is
afforded a reasonable time to defend.
Department of Hous. Preservation and Dev. v. 24 West 132
Equities, Inc., 137 Misc.2d 459, 524 N.Y.S.2d 324, 326-27 (App.
Term 1st Dept. 1987). The Appellate Division affirmed without
opinion, Department of Hous. Preservation and Dev. v. 24 West
132 Equities, Inc., 150 A.D.2d 181, 540 N.Y.S.2d 711
(App. Div.1st Dept. 1989), and the New York Court of Appeals
denied leave to appeal, Department of Hous. Preservation and
Dev. v. 24 West 132 Equities, Inc., 74 N.Y.2d 841, 546 N.Y.S.2d
558, 545 N.E.2d 872 (1989).
The United States Supreme Court has frequently discussed the
procedural protections afforded in criminal contempt
proceedings. Recently, the Supreme Court summarized its
holdings as follows:
[T]his Court has found that defendants in
criminal contempt proceedings must be presumed
innocent, proved guilty beyond a reasonable
doubt, and accorded the right to refuse to
testify against themselves; must be advised of
charges, have a reasonable opportunity to respond
to them, and be permitted the assistance of
counsel and the right to call witnesses; must be
given a public trial before an unbiased judge;
and must be afforded a jury trial for serious
contempts.
Young v. United States ex rel. Vuitton et Fils S.A.,
481 U.S. 787, 798-99, 107 S.Ct. 2124, 2132-33, 95 L.Ed.2d 740 (1987)
(citations omitted). While several Supreme Court decisions
discuss the issue of notice, none directly address the need for
personal service of process. When the acts in contempt are not
committed in open court, "[d]ue process of law . . . requires
that the accused should be advised of the charges and have a
reasonable opportunity to meet them by way of defense or
explanation." Cooke v. United States, 267 U.S. 517, 537, 45
S.Ct. 390, 395, 69 L.Ed. 767 (1925); see also Fed.R.Crim.P.
42(b) (criminal contempt not committed in open court prosecuted
"on notice," either orally to the alleged contemnor or by "an
order to show cause or an order of arrest"). Even when the
judge has first hand knowledge of the contemptuous behavior,
the contemnor "should have reasonable notice of the specific
charges and opportunity to be heard in his own behalf." Taylor
v. Hayes, 418 U.S. 488, 499, 94 S.Ct. 2697, 2703, 41 L.Ed.2d
897 (1974); see also Groppi v. Leslie, 404 U.S. 496, 502, 92
S.Ct. 582, 586, 30 L.Ed.2d 632 (1972); In re Oliver,
333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948). One who is
charged with criminal contempt is "not only entitled to be
informed of the
nature of the charge against him, but to know that it is a
charge and not a suit." Gompers v. Bucks Stove & Range Co.,
221 U.S. 418, 446, 31 S.Ct. 492, 500, 55 L.Ed. 797 (1911).
The Supreme Court has also recognized "that certain specific
constitutional protections, such as the right to a trial by
jury, are not applicable to those criminal contempts that can
be classified as petty offenses . . ." Hicks on Behalf of
Feiock v. Feiock, 485 U.S. 624, 632 n. 5, 108 S.Ct. 1423, 1430
n. 5, 99 L.Ed.2d 721 (1988) (quoting Bloom v. Illinois,
391 U.S. 194, 208-210, 88 S.Ct. 1477, 1485-86, 20 L.Ed.2d 522
(1968)). "[C]ontempt of court is a petty offense when the
penalty actually imposed does not exceed six months or a longer
penalty has not been expressly authorized by statute." Taylor
v. Hayes, 418 U.S. at 495, 94 S.Ct. at 2701 (citing cases). New
York's criminal contempt statute provides for a maximum jail
term of 30 days. Jud.Law § 751(1). Morfesis' aggregate sentence
on the seven separate charges is less than six months, and no
single sentence exceeds 25 days. Clearly, Morfesis has been
adjudged guilty of petty offenses.
The petitioner cites cases in which the Second Circuit has
held that the Sixth Amendment right to be present and Rule
43(a) of the Federal Rules of Criminal Procedure require that
a defendant must be arraigned in open court before subsequent
proceedings may proceed in the defendant's absence. See U.S. v.
Reiter, 897 F.2d 639 (2nd Cir. 1990); United States v. Tortora,
464 F.2d 1202 (2nd Cir. 1972), cert. denied, 409 U.S. 1063, 93
S.Ct. 554, 34 L.Ed.2d 516 (1972). While the issue of personal
service and the right to be present are closely related, the
Supreme Court has held that procedural safeguards for criminal
contempts are not derived from the explicit requirements of the
Sixth Amendment, but instead from the Due Process Clause.
Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038,
1042, 4 L.Ed.2d 989 (1960); see also Sassower v. Sheriff of
Westchester County, 824 F.2d 184, 188-89 (2nd Cir. 1987)
(collecting cases).
The Appellate Term held that "the separate proceeding to
punish for a criminal contempt has been traditionally viewed
in New York as a civil special proceeding," Department of
Hous., 524 N.Y.S.2d at 326 (emphasis in original) (citation
omitted), and that the application of New York's civil
procedure rules did not violate the United States Constitution.
We agree. The Due Process Clause requires only that a criminal
contemnor have notice of the charges and an opportunity to
defend. See Sassower, 824 F.2d at 188 (finding section 751
constitutional on its face). We believe that leave and mail
service provides such reasonable notice. While personal service
guarantees actual notice, we understand the New York court's
concern that "it is frequently the case that those who have
flagrantly violated the court's orders are not disposed to make
themselves readily available for personal delivery of notice
that they are to be prosecuted for contempt of those orders."
Id., 524 N.Y.S.2d at 327. New York has made a policy decision
that leave and mail service in such cases is preferable to the
issuance of an arrest warrant. We do not believe that the
United States Constitution precludes that decision.
We also note that CPLR § 317 provides relief for defendants
who do not receive actual notice despite leave and mail
service. The burden is on the defendant to prove that he did
not personally receive service and did have a meritorious
defense. See Sorgie v. Dalton, 90 A.D.2d 790, 455 N.Y.S.2d 397
(App. Div.2d Dept. 1982), appeal dismissed, 58 N.Y.2d 968, 460
N YS.2d 534, 447 N.E.2d 83 (1983). Petitioner here does not
allege in his habeas petition that he did not receive actual
notice of the contempt charges, but instead claims that
"nowhere in the record, prior to the sentencing hearing, is
there any indication that Petitioner had `actual notice' of the
contempt proceedings." Petitioner's Memorandum of Law at 12.
Absent a specific claim by petitioner that he did not receive
actual notice, it is not necessary for this Court to decide in
connection with this petition whether or not the petitioner
received actual notice of the contempt charges.
We hold that in prosecutions for petty criminal contempt,
where the petitioner has not alleged lack of actual notice,
leave and mail service pursuant to New York civil procedure
rules does not violate the Due Process Clause of the United
States Constitution. The petition for a ...