APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant to hold the Hon. Howard Boris of the Justice Court, Village of Lake Success in contempt of this court's order of February 22, 2005, unanimously reversing defendant's traffic conviction, dismissing the accusatory instrument and ordering the fine to be remitted. Cross motion by the Hon. Howard Boris for sanctions against defendant pursuant to Section 130-1.1 of the Rules of the Chief Administrator on the ground that defendant's motion is frivolous.

Defendant's motion is denied. Cross motion is granted and sanctions are imposed against defendant in the amount of $1,000, payable to the Lawyers' Fund for Client Protection.

In a motion seeking to hold the Hon. Howard Boris of the Justice Court of the Village of Lake Success in contempt of an order of this court reversing defendant's traffic conviction, defendant contented that the court below failed and refused to remit the fine and to have the conviction expunged from his driving record despite numerous requests. Justice Boris opposed the motion and cross-moved to impose sanctions upon defendant, an attorney, on the ground that the motion was frivolous within the meaning of Rules of the Chief Administrator (22 NYCRR) � 130-1.1. Costs and attorney's fees were not requested.

In his affirmation, counsel for Justice Boris stated that the necessary steps to expunge the conviction from defendant's driving record and to remit the fine were taken as of June 16, 2005, that confirmation of the expungement was received on July 21, 2005, and that confirmation that the fine had been remitted by the State Comptroller was received on July 29, 2005. Nevertheless, defendant indicated to counsel that he would proceed with the contempt motion because the court did not cause the People's prior motion to this court for reargument to be withdrawn. (This court denied the People's motion by order of August 26, 2005).

Counsel for Justice Boris stated that he informed defendant by telephone call and letters that steps had been taken to remit the fine and to expunge the conviction, and that he notified defendant when these acts were accomplished. Counsel stated that he "advised [defendant] that I believed the Appellate Term would not appreciate him proceeding with a motion that had been rendered moot. [Defendant] then suggested that I was dreaming."

In his opposition and reply, defendant did not dispute the foregoing account. Rather, he stated his contention that he only got his money back and the conviction expunged from his driving record ("miraculously," in his term) because he made the contempt motion. He admitted that "the relief that I sought has been obtained. " However, because "the Village Justice Court in conjunction with the law firm that acts as a prosecutor in that Court still has a motion" for reargument before the Appellate Term, he believed that the court below remained in contempt and that he was the "victim in this matter," stating, by way of an explanation:

"First of all, the Nassau County Police Officer gave me two traffic tickets which he knew I did not deserve. They were issued to me because he had an argument with a passenger in my motor vehicle. Secondly, I went to the Village Court and explained it to the Village prosecutor. Keep in mind that the Village prosecutor is not a regular Nassau County Assistant District Attorney. It is my understanding that he works with a civil firm and his hired by the Village and the Village Court to prosecute matters in that Court

Said attorney put this case to trial even after I explained to him that there was absolutely no basis for the prosecution. I am a former Suffolk County Assistant District Attorney. One would think that the Village prosecutor spoke with this police officer prior to putting him on the stand and having him swear to tell the truth. During that trial preparation he should have been made aware of the fact that the case against me was totally without merit. Rather than seeking justice, as required by law, this �prosecutor' put a police officer on the stand who, in my opinion, perjured himself.

To top matters off, Justice Boris after listening to the perjured testimony, wrought with inconsistencies, and, absent of credibility, convicts me of one of these ridiculous offenses.

I spent many hours and many hundreds of dollars to correct this wrong. Now, [counsel] in his affirmation, portrays his client, the Village and Justice Boris, as the victims in this matter. This is outright unconscionable.

Even though I have obtained the relief I requested, I did not know whether or not there is a history with the Village Court and its employees treating the public the way I was treated. Image [sic] the plight of the non-attorney, pro-se defendant who has to run a gauntlet similar to the one I was put through."

As sanctions have been specifically requested by Justice Boris, defendant has received sufficient notice that this relief would be considered and a formal hearing is not necessary (see Minister, Elders & Deacons of Reformed Protestant Dutch Church v 198 Broadway, Inc., 76 NY2d 411, 413 n [1990]). Defendant, an attorney, has provided no argument and no legal grounds beyond his own dudgeon to support his contention that this court should (or could) hold a village Justice in contempt, essentially, for failing to act quickly enough to satisfy defendant, and for failing to cause the People to withdraw a motion that the People were fully within their rights to make. It may be noted that were the judge to so act, he himself would be subject to discipline.

Defendant clearly knew, at least by the time he submitted his opposition to the cross motion and reply papers, and admitted in these papers, that the relief sought in the motion had been obtained. Moreover, a modicum of legal research would have indicated that the proper procedure to obtain relief in the present circumstances, should more informal methods fail, is to commence an Article 78 proceeding, not to make a contempt motion against the judge below. For these reasons, we find that the motion's lack of legal or factual basis was, or should have been, apparent to defendant (Rules of the Chief Administrator [22 NYCRR] � 130-1.1 [c] [1]).

As an attorney and an officer of the court (and, by his account, a former Suffolk County Assistant District Attorney), defendant may be expected to be familiar both with the concept of mootness and with the requirements of civility and decorum in all court proceedings. It is evident from his reply papers in particular that he is pursuing this motion in order to cost the court below at least the same time and money that he believes he was wrongfully forced to expend in defending himself in that court, and asks that we "Image [sic] the plight of the non-attorney, pro-se defendant who has to run a gauntlet similar to the one I was put through," a statement that at least implies that he is in a special position to punish the court, and is doing so, because he is an attorney. Therefore, we find that defendant's purpose in pursuing this motion is "primarily. . . to harass or maliciously injure another" (Rules of the Chief Administrator [22 NYCRR] � 130-1.1 [c] [2]).

Moreover, we find that defendant's attitude in bringing on and pursuing the present motion demonstrates a degree of contempt for the judiciary and the judicial system, as represented both by the Justice Court and by this court, that should not be countenanced. The fact that the court in question is a Village Court does not render either its personnel or its proceedings less worthy of respect, whether its decisions are found to be correct or not. While defendant is certainly entitled to his opinions regarding the competence of the police, court officials and Justice involved in his matter, he is not entitled to burden the courts with a patently frivolous motion, couched in the most disrespectful terms, in order to express them. Taking into account the lack of any initial merit to the motion, defendant's evident lack of good faith and his intent to harass the court below in pursuing the motion despite his own admission that the relief sought therein had already been given, and the seriousness of the allegations against various public and judicial officials made therein, we find that a sanction of $1,000 is appropriate (see generally Levy v Carol Mgmt. Corp., 260 AD2d 27 [1999]).

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

That branch of the motion by defendant-appellant to continue to stay sentence pending determination of appeal is granted. On the court's own motion, defendant's time to perfect appeal is enlarged to February 3, 1996.

That branch of the motion to submit the appeal on an abridged record as provided to this court is also granted.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant for an enlargement of time to perfect appeal and leave to serve and file a pro se brief is granted and appeal shall be perfected by

February 3, 2006; otherwise, appeal dismissed.

No duplicate copy of the transcripts for defendant's own use is authorized at the State's expense.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by assigned counsel, Gerald Zuckerman, Esq., to be relieved of representing defendant-appellant on the appeal is granted and other counsel assigned pursuant to article 18-B of the County Law.

On the court's own motion, an enlargement of time to perfect appeal is granted and appeal shall be perfected by January 6, 2006; otherwise appeal dismissed.

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

DECISION

Motion by defendant-appellant for an enlargement of time to perfect appeal is granted and appeal shall be perfected by January 6, 2006; otherwise appeal dismissed.