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March 29, 1990


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

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 ...

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