Marcus v. Bamberger

180 A.D.2d 533

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1992
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Phylis S. Bamberger, J.), entered on or about November 23, 1990, which imposed a sanction of $100, pursuant to 22 NYCRR 130-1.2, affirmed, without costs.

On Friday, July 20, 1990, in the course of jury selection, appellant, an attorney with the Criminal Defense Division of The Legal Aid Society, requested the court’s permission to leave by 2:15 p.m. on Monday, July 23, 1990. Accommodating this request, the court made arrangements to extend its morning session on July 23 and advised the jury that it was required to appear at 9:45 a.m. and instructed counsel to arrive promptly at 9:30 a.m. Appellant nevertheless arrived a half hour late. At the close of proceedings on July 23, the court stated that court would commence at 9:30 a.m. the next morning and that sanctions would be imposed upon parties not present on time. On July 24, 1990, the court, defendant, Assistant District Attorney, jurors, and four police officers subpoenaed by appellant were present at 9:30. Appellant, however, did not arrive until 9:43 a.m., whereupon, without noting her appearance or requesting leave, she chose to hold a consultation with her client in the vestibule. When appellant returned to the courtroom at 9:51 a.m., the court imposed a $100 sanction for lateness. At appellant’s request the sanction was withdrawn so that a hearing could be held. Appellant admitted at the hearing that she had not left her office until 9:30 a.m. on that morning and stated that she was delayed because of her attempts to ascertain what had happened to other cases. She also stated that when she did finally arrive, she felt compelled to speak with her client because he appeared agitated.

The court upheld the sanction, noting in particular that when appellant did finally arrive at the courtroom, "she immediately left it without even offering an explanation for her lateness or requesting additional time”. Solely in reference to appellant’s argument that her noncompliance with the court’s order was not willful and as explanation why counsel had reason to know that timeliness in this instance was of paramount importance, the court noted that appellant’s lateness on various matters in this case had been the subject of extensive discussion and that, on a previous occasion in another matter, appellant had been threatened with sanctions for lateness. Given this background, the court found that appellant’s conduct "can only be considered an intentional disregard of a court order”.

Sanctions may be imposed upon the court’s own initiative after a reasonable opportunity to be heard (22 NYCRR 130-1.1 [d]). Contrary to appellant’s contention, the hearing she was given satisfied this due process requirement. Appellant was represented by counsel and permitted to testify and offer evidence. Nor was it error for the court to consider "relevant evidence of events predating the alleged misconduct in order to clarify or to provide background for the formal charges” (Matter of Gelfand, 70 NY2d 211, 216). The court’s decision leaves no question that the sanction was imposed solely as a penalty for appellant’s lateness on July 24, in violation of the court’s explicit order. We conclude that in the circumstances the imposition of a $100 sanction did not constitute an abuse of discretion. Concur — Ellerin, J. P., Wallach, Ross and Smith, JJ.