STATE OF NEW JERSEY v. RASHIDAH N. HASAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4395-07T44395-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHIDAH N. HASAN,

Defendant-Appellant.

____________________________

 

Argued March 10, 2009 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 2007-063.

Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Edward J. Byrne, on the brief).

Debra G. Simms, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Simms, of counsel and on the brief).

PER CURIAM

Defendant Rashidah N. Hasan appeals from the April 10, 2008 order of the Law Division finding her guilty of contempt of court following de novo review, imposing a $500 fine and placing her on probation for a period of one year with the condition that she perform sixteen hours of community service. For the reasons that follow, we affirm the finding of contempt but modify the sanction imposed.

Defendant is an attorney admitted to practice in New Jersey since 1989. She was retained to represent Dwayne A. Smith in Bloomfield Municipal Court on charges resulting from two motor vehicle stops on March 9 and 29, 2007. Defendant sought discovery in the municipal court concerning the race of individuals charged or arrested by the Bloomfield Police Department following motor vehicle stops. Defendant was provided with access to the Internal Affairs investigation concerning her client's two traffic stops; she was advised, however, that the other racial data which she sought were unavailable.

Trial on both charges commenced in municipal court on October 4, 2007. Bloomfield Police Officer Nicholas Rizzitello testified that on March 9, 2007, at 11:30 p.m., he and his partner, Officer Lutz, observed a car stopped by a house on Charles Street. As soon as the officers pulled behind the car, the driver "took off, drove away, . . . [and] was going in and out of streets driving close to other cars and accelerating faster than the speed of the road of the residential area." On at least five occasions, Rizzitello observed the car "[s]werving, . . . not maintaining his lane, to the side, to the other side, . . . [so] as to lose the patrol vehicle." After following the vehicle through several streets, the officers activated their flashing lights and pulled the vehicle over. Both officers approached the vehicle, Rizzitello on the passenger side and Lutz on the driver's side. The officers advised Smith that he was being charged with "driving erratically." The officers returned to their vehicle to issue summonses "for a loud muffler and careless driving." While they were writing the tickets, Smith "jumped out of the car . . . in an aggressive manner." The officers instructed Smith to remain in his car; Smith, however, stated that he had to go to the bathroom. When the officers repeated that he should return to his car, Smith said, "I'm going to the bathroom, that's where I live, I'm going to the bathroom."

Officer Luca Piscitelli was involved in Smith's March 29 charges. On that date, Piscitelli was on patrol with Officer Lutz and, while stopped at a red light, observed what turned out to be Smith's vehicle traveling "at a high rate of speed[,] . . . passing other vehicles, and . . . [they] heard the loud muffler and looked at the muffler." The officers activated their lights and pulled Smith over. When asked to produce his credentials, Smith did not have his insurance card. Piscitelli issued Smith a summons for an uninsured vehicle. The officers then called for a tow truck to remove the vehicle. Smith became "ir[]ate" and claimed that the officers were out to get him . . . ." Piscitelli stated that as of the date of trial, he had not seen evidence that Smith had insurance for the vehicle. The prosecutor then stated that he believed "there [wa]s a card[,]" and that "counsel ha[d] brought a card."

When defendant attempted to cross-examine Piscitelli on the insurance card, the judge asked, "Well, what's the question? If you [have] proof of insurance, what are we doing here wasting all this time?" Defendant responded: "We're trying to give my client a fair hearing of his matter. We are not here to waste the time of the [c]ourt."

Defendant then briefly cross-examined Piscitelli and attempted to ask him whether he had stopped the vehicle because of the loud muffler or because of the speeding. After the judge sustained the prosecutor's objection to that question, defendant moved for dismissal of the charges, arguing that "[t]here [wa]s no showing of probable cause. The only ticket issued on that date was a no insurance ticket, and there was no reason to stop the vehicle on that date. There was no speeding ticket issued." The judge responded that the police officers "used their discretion[,]" and stated to defendant, "I'm a little bit annoyed because I think you're making an argument that is entirely frivolous. . . . [H]e saw your client speeding . . . and there's no reason to stop the car?" Defendant reiterated that no speeding ticket had been issued and attempted to refer to the "history" of her client having been stopped two weeks earlier.

The judge reiterated that the officer "used his discretion." The following colloquy then ensued between the defendant and judge:

[DEFENDANT]: Based on the history of the -- I respect the [c]ourt, and I ask that the [c]ourt respect me in the way it addresses me.

THE COURT: I'm respecting you, ma'am, but I'm getting --

[DEFENDANT]: Then you --

THE COURT: I'm getting -- I'm getting disrespected with this kind of a motion.

[DEFENDANT]: But you should not be raising your voice at me.

THE COURT: Well, sometimes --

[DEFENDANT]: No, it is not.

THE COURT: -- that's what you got to do in this life.

[DEFENDANT]: No, it is not. I have to act a certain way as an attorney before this [c]ourt.

THE COURT: Where's the proof of insurance, ma'am?

[DEFENDANT]: You have to act a certain way as a [j]udge before this [c]ourt.

THE COURT: Where's the proof of insurance, ma'am?

[DEFENDANT]: And I -- I want you to make a ruling on my motion.

THE COURT: Motion denied obviously.

[DEFENDANT]: Thank you.

THE COURT: And I'm going to sanction you --

[DEFENDANT]: For the record --

THE COURT: -- for a frivolous motion $100. Where's the proof of insurance?

[DEFENDANT]: And put that on hold until I make my appeal respectfully.

THE COURT: Hundred dollars sanction for a frivolous motion.

[DEFENDANT]: And I respectfully --

THE COURT: I have --

[DEFENDANT]: -- ask --

THE COURT: I have here what's called I guess D -- D-1 or D-2. Is that acceptable to the State at this point for the --

[PROSECUTOR]: It sure looks like good evidence of insurance for a 1995 Honda for the date in question. And if it had been presented that night, it wouldn't have --

THE COURT: We wouldn't go through all this.

[PROSECUTOR]: -- it wouldn't have been an issue.

[DEFENDANT]: I would ask that the [c]ourt stay my sanction to give me an opportunity to appeal.

THE COURT: Denied.

All right. This is the insurance part of this problem, on March 29, a charge of driving without insurance. We go through a whole trial when counsel was sitting there with proof of insurance, and --

[DEFENDANT]: 'Cause the issue of probable --

THE COURT: -- we waste a lot of time.

[DEFENDANT]: -- cause, Your Honor.

THE COURT: And I'm sanctioning the attorney $100 --

[DEFENDANT]: And he . . . does not want to plea[d] to something --

THE COURT: If you're not going to -- if you're going to talk over me --

[DEFENDANT]: -- that he shouldn't plea[d] to.

THE COURT: -- there's going to be another sanction.

[DEFENDANT]: You're indicating he should plead to something that he feels that he was unjustly stopped for. That's what you're asking.

THE COURT: If he got a ticket for driving without insurance 'cause he didn't have possession of insurance, all he had to do was go to the police station and show them the insurance within 24 hours. It would be dismissed.

[DEFENDANT]: Respectfully, if the [c]ourt would have permitted this matter to be held in abeyance until Officer Lutz was present so that both -- all of these officers could be here at the same time and there could be testimony taken on what occurred in all of theses inciden[t]s, I don't believe the [c]ourt . . . would be issuing what it is . . . issuing today

THE COURT: All right. This matter is marked I think in the usual manner dismissed with court costs[,] $39 on the insurance charge.

. . . .

THE COURT: I know we're getting a little bit -- we talk about loud mufflers. We talk about some loud conversation sometimes because we all get feelings or anger and outrage, including judges. When I hear frivolous arguments, I get . . . a sense of outrage, quite frankly.

In this case, I'm going to be fair to your client, ma'am, and mark it dismissed with usual court costs, $39. All right. We're finished with that.

And then the other trial is being held for a new date for Officer Lutz to be -

Are you going to subpoena Officer Lutz?

[DEFENDANT]: Yes.

Trial resumed on October 25, 2007. At the outset, defendant argued two motions: one for reconsideration of the $100 fine previously imposed upon her and the second for the judge's recusal. In response to defendant's arguments, the judge apologized for having "expressed . . . anger" during the previous trial, but denied both motions. Defendant then stated:

[I]f Your Honor is not going to reconsider and vacate that contempt, then I would like that dealt with now because with all due respect to this [c]ourt, I don't intend to pay it. . . . And if there's going to be some penalty for that, I want to know what that is now . . . so that's not hanging over me when I'm trying to represent . . . my client.

The judge, however, stated that he preferred to move forward with the completion of Smith's trial first. The following colloquy then ensued:

[DEFENDANT]: With all due respect, Your Honor, I will not go forward unless you indicate to me that at the end of my case today I'm going to be taken into custody or not. I'm here trying to represent my client. If I have to think about what my own situation is and represent him at the same time, he's not getting the best from me today.

THE COURT: What is . . . your motion?

[DEFENDANT]: [M]y motion is that you either vacate the contempt or you indicate to me at this point in the proceeding what the penalty is going to be for that because it is . . . not my intent to pay it.

THE COURT: So what are we doing here? This is contempt of court, ma'am?

[DEFENDANT]: Yes, Your Honor, it is. And that's what you imposed on me the last time I was here.

THE COURT: No, no. I'm saying right now today, you're being in contempt of this [c]ourt?

[DEFENDANT]: What I'm doing today, Your Honor, is you have indicated that you will not vacate the contempt from the last time when I was here --

THE COURT: Ma'am --

[DEFENDANT]: Can I finish, please?

THE COURT: I . . . didn't call it contempt. I called it a sanction for --

[DEFENDANT]: But you said, you're in --

THE COURT: -- a frivolous motion.

[DEFENDANT]: -- contempt and you're sanctioned. Those were your exact words.

THE COURT: Okay. Well, let's change the wording to sanctioned, shall we? Now . . . the sanction is going to remain. You understand? Now we're facing a contempt of court right --

[DEFENDANT]: Okay.

THE COURT: -- here and now.

[DEFENDANT]: You indicated to me that when I came back today that I should have the amount that you had sanctioned

THE COURT: Okay.

[DEFENDANT]: And --

THE COURT: We'll put that aside, ma'am. I don't care if you pay it now or not. Okay? But we're going to put that aside, and we're going to . . . continue with the case. You --

[DEFENDANT]: So --

THE COURT: You subpoenaed a witness. Call your witness.

[DEFENDANT]: Am I clear that at the end of the case today, we're going to have this conversation again, or will I have to come back again to have this conversation?

THE COURT: We're going to finish the case, and then we'll have a conversation about your sanctions.

[DEFENDANT]: I'm not willing to go forward under those circumstances.

THE COURT: This is contempt of court, ma'am. I'm telling you right now you have taken . . . the [c]ourt's time before.

Just to review this matter, this goes back - tickets were issued March the 9th of this year. This is an old case. You came before this [c]ourt asking for discovery that is ordinarily not given in a case like this, and we have provided you with that discovery. The case has been carried at your request a number of times.

I . . . went out of my way to be courteous to you and respectful[], and I was in that fashion all the way through this matter, ma'am, trying to understand your positions and giving you the time to properly represent your client.

. . . .

THE COURT: This file involving minor motor vehicle charges relatively speaking is growing into an unmanageable pile of paper here, quite frankly. . . .

We had the trial. I believe it was on October 4th which was carried `til today. . . . I went all through the trial. . . .

. . . .

[DEFENDANT]: Is my understanding that the [c]ourt has vacated the contempt? Is that accurate?

THE COURT: No, ma'am. I didn't . . . cite you for contempt. I gave you a sanction for a frivolous motion. There's a different rule.

[DEFENDANT]: With all due respect, Your Honor, your words then -- and, I mean --

THE COURT: I changed the word --

[DEFENDANT]: The record will be pulled here.

THE COURT: -- from contempt to sanction, ma'am.

[DEFENDANT]: You said contempt and --

THE COURT: No. I want to proceed --

[DEFENDANT]: -- you're going to be sanctioned.

THE COURT: -- now with this case. I'm ordering you to proceed with your case right now.

[DEFENDANT]: I want to know because I don't --

THE COURT: Ma'am, I'm not going to hear --

[DEFENDANT]: I have to represent my client.

THE COURT: I'm not going to hear any more.

[DEFENDANT]: I have to represent my client.

THE COURT: I -- I'm telling you right now --

[DEFENDANT]: And I don't want to be --

THE COURT: -- I'm going to hold you in contempt of court --

[DEFENDANT]: I have indicated to you --

THE COURT: And I will put you in a jail cell.

The prosecutor attempted to intervene, to which the judge responded: "I'm not going to be pushed around by anybody. And that's what this lady's doing -- trying to do to me. She's trying to push me aside and have the case . . . tried all over again, and I'm not going to stand for it."

Defendant persisted in her refusal to proceed with trial until the judge resolved the sanction issue. The judge thereupon had defendant arrested for contempt of court, citing Rule 1:10-1, which prompted the following colloquy:

[DEFENDANT]: First, I have not obstructed anything. . . .

Second, this stems from this [c]ourt sanctioning and holding me in contempt originally because in representing my client, I made a verbal motion to dismiss his case. I ha[d] indicated to the [c]ourt when I came in today that I can't think of what's going to happen to me at the end of this trial as well as represent my client at the same time. And all the [c]ourt needed to do was to tell me if the sanction was not going to be . . . vacated what the penalty would be because you held me in contempt. That to me means if that fine is not paid, I am going to be subject to being arrested. And I will not have that hanging over my head at the same time that I'm here to represent my client.

I have abused nothing. It is this [c]ourt that has abused its discretion in this matter.

THE COURT: You finished?

[DEFENDANT]: I am finished.

THE COURT: Okay. I've heard what you just said. I've heard it before. I had absolutely no intention . . . of holding you in contempt for your previous misconduct. I imposed a sanction for a frivolous motion that occurred some two or three weeks ago. I'm simply trying to get to the finish of this case today. I ordered you to proceed. You have repeated this argument over and over and over again. I had no contempt citation against you until the present matter where you . . . have contumaciously and consciously repeatedly refused to proceed with the case.

The only sanction against you was $100. That was going to be reviewed by the Court. You were not going to be arrested for nonpayment of the $100.

. . . .

[DEFENDANT]: I did not know that.

THE COURT: And now you're interrupting me.

[DEFENDANT]: You did not say that before.

THE COURT: And now [you] want to continue to interrupt me? Okay?

[DEFENDANT]: I'm just trying --

THE COURT: You had no reason to --

[DEFENDANT]: -- to make things clarified.

THE COURT: You had no reason to believe that th[ere] would be any . . . kind of a problem except to . . . argue with the [c]ourt after the completion of the case --

[DEFENDANT]: With the treatment --

THE COURT: -- that the --

[DEFENDANT]: -- that I've received from --

THE COURT: You want to keep --

[DEFENDANT]: -- this [c]ourt --

THE COURT: -- keep interrupting me?

[DEFENDANT]: I thought that that would be --

THE COURT: Keep interrupting me.

[DEFENDANT]: -- a possibility.

THE COURT: Okay. I have recited the facts as best as I can. I have . . . seen this terrible conduct. I've never seen anything like this by an attorney in the open . . . courtroom before. The --

[DEFENDANT]: I echo that.

THE COURT: Th[is] . . . defendant . . . has been willfully contumacious. Punishment will be determined right now. I'm going to sentence you to ten days in the jail and issue a fine of $500. The execution in accordance with the rule would be stayed for five days. That's it.

Take this lady out of the courtroom. Execution is stayed. She can be released.

[DEFENDANT]: I have practiced for about 20 --

THE COURT: Okay.

[DEFENDANT]: -- years. I have never --

THE COURT: You're going to continue --

[DEFENDANT]: -- had this type of --

THE COURT: I'm telling you to leave the courtroom right now, ma'am.

[DEFENDANT]: -- disrespect --

THE BAILIFF: Ma'am --

[DEFENDANT]: -- and abuse by any judge in all --

THE COURT: Leave this courtroom right now.

[DEFENDANT]: -- the years that --

THE BAILIFF: Ma'am, come on.

[DEFENDANT]: -- I've been practicing.

THE COURT: Or I will put you right in jail.

Defendant appealed her contempt of court; venue was transferred from Essex to Hudson County. Just before the hearing on appeal, defendant moved to have the Law Division judge recuse himself based upon comments the judge had made during a pre-trial telephone conference in which he inquired whether defendant would be willing to apologize to the municipal court judge. Defendant stated that she would not be willing to apologize. The Law Division judge concluded that his pre-trial involvement was not excessive and did not warrant recusal.

At the trial de novo on February 22, 2008, the Law Division judge rejected defendant's argument that the municipal judge should have recused himself after imposing the $100 sanction; the judge dismissed that sanction, however, because he found that the municipal judge had improperly imposed it. The Law Division judge upheld the contempt order entered on October 25, 2007, directed the prosecutor "to refer this matter to the appropriate Committee on Attorney Ethics[,]" and postponed sentencing.

Sentencing was held on April 4, 2008. The judge stated at the outset that he did not believe that race had been a factor in defendant's punishment despite defendant's assertions to the contrary. The judge then upheld the $500 fine, vacated the jail sentence and placed defendant on probation for one year. The judge imposed as a condition of probation the requirement that defendant perform sixteen hours of community service "in a non-legal capacity[,] . . . in an area most visible to the public . . . ." The judge then added that if defendant chose to apologize to the municipal judge, everything imposed beyond the fine would be vacated. The judge stayed defendant's sentence pending appeal to this court. Defendant thereafter moved for reconsideration of that judgment, which was denied.

On appeal, defendant raises the following issues for our consideration:

POINT ONE

THE CONTEMPT FINDING BY THE MUNICIPAL JUDGE MUST BE VACATED BECAUSE HIS FAILURE TO RECUSE HIMSELF VIOLATED THE CODE OF JUDICIAL CONDUCT AND THE DUE PROCESS RIGHTS OF APPELLANT.

A. HAVING BEHAVED IN VIOLATION OF THE CODE OF JUDICIAL CONDUCT, AND IN VIOLATION OF THE STATE AND FEDERAL RIGHTS OF APPELLANT, JUDGE CONNOLLY WAS REQUIRED TO HAVE RECUSED HIMSELF, AND HIS FAILURE TO HAVE DONE SO REQUIRES THAT HIS FINDING OF CONTEMPT BE VACATED.

B. A PROCEEDING CONDUCTED BY AN UNQUALIFIED JUDGE HAS NO LEGAL EFFECT.

POINT TWO

THE LAW DIVISION JUDGE, BY FAILING TO RECUSE HIMSELF, VIOLATED THE STATE AND FEDERAL CONSTITUTIONAL RIGHTS OF APPELLANT TO DUE PROCESS AND A FAIR TRIAL, AND REQUIRES VACATION OF THE CONTEMPT CONVICTION.

POINT THREE

APPELLANT'S COMPLIANCE WITH THE MUNICIPAL COURT'S UNLAWFUL ORDER TO PROCEED WOULD HAVE DENIED MR. SMITH HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT FOUR

THE MUNICIPAL COURT'S DECISION TO PROSECUTE APPELLANT'S CONDUCT ON OCTOBER 25 AS CONTEMPT VIOLATED HER STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

We first address defendant's arguments that both the municipal judge and the Law Division judge should have recused themselves. We note that the question of whether a judge should recuse himself from a given matter is within his discretion. Jadlowski v. Owens-Corning Fiberglass Corp., 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Therefore, our standard of review on this issue is whether either judge abused his discretion in denying recusal.

Rule 1:12-1(f) provides that a judge "shall be disqualified . . . when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Defendant cites the events at trial on October 4 and 25, 2007, and particularly the municipal judge's comment that her motion was "frivolous" and his reference to her as "lady" as "creat[ing] an appearance of racial bias."

We conclude that the municipal court judge's behavior and demeanor clearly escalated the incidents, particularly on October 25, and led to a far more antagonistic situation than necessary, although we find no "appearance of racial bias," or any other conduct that would fall within the purview of Rule 1:12-1(f). Although the municipal judge sanctioned defendant on October 4, that alone does not form a basis for recusal. An adverse ruling against the party seeking recusal, even if made in a prior proceeding, does not warrant recusal. State v. Marshall, 148 N.J. 89, 276, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 88 (1997).

Defendant's allegation of racial bias on the part of the municipal judge finds no support in the record. Defendant bases this argument on the fact that both she and her client, Smith, are African-American and there were "racial overtones" in the case. We conclude, however, that the record contains no evidence of any behavior on the part of the municipal judge that was motivated by racial bias. At most, the record demonstrates that, on October 4, the judge improperly imposed a sanction upon defendant and became exasperated with her over the issue of Smith's insurance card and defendant's motion to dismiss Smith's charges, which the judge considered "frivolous."

We likewise reject defendant's argument that the Law Division judge should have recused himself because of his inquiry in a pre-trial telephone conversation as to whether defendant would be willing to apologize to the municipal judge. We reject as without merit defendant's argument that this question evidenced the judge's bias in favor of the municipal judge.

We conclude that the Law Division judge was merely inquiring into the possibility of settling the matter without the need for further litigation. As the judge stated in denying defendant's recusal motion, the five-minute telephone conference in which he asked about the possibility of an apology did not constitute "'excessive pre-trial involvement[,]'" nor did the judge encourage or pressure defendant to apologize; rather, he merely proffered it as a possible means of settling the matter.

We turn next to the defendant's arguments regarding the October 25, 2007 contempt order. Defendant first argues that had she complied with the municipal judge's order to proceed with Smith's trial prior to resolving the sanctions issue, Smith would have been deprived of his right to a fair trial. Defendant also contends that the contempt order violated her own constitutional rights to due process and a fair trial.

Rule 2:10-4 provides: "Every summary conviction by a court for contempt shall be reviewable on the law and the facts. The appellate court shall render such judgment and order for enforcement thereof as it deems just under the circumstances." "The provision for de novo appellate review of summary contempt convictions is a fail-safe mechanism for assuring that the contempt power is not abused." In re Daniels, 118 N.J. 51, 62, cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990).

This extraordinary power . . . should be exercised sparingly and only in the rarest of circumstances. When an attorney's conduct in the actual presence of the court has the capacity to undermine the court's authority and to interfere with and obstruct the orderly administration of justice, there can be no alternative but that a trial court assume responsibility to maintain order in the courtroom. This narrow exception to due-process requirements permits the imposition of sanctions only for "charges of misconduct, in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent 'demoralization of the court's authority' before the public."

[Id. at 61-62 (quoting In re Oliver, 333 U.S. 257, 275, 68 S. Ct. 499, 509, 92 L. Ed. 2d 682, 695 (1984)).]

We are satisfied that defendant's conduct before the municipal judge on October 25, 2007 constituted contempt. Defendant persistently and willfully defied the judge's instruction that she proceed with the trial of Smith's case prior to addressing her own situation. As is evident from the colloquies quoted above, defendant had no intention of obeying the judge's direction.

Defendant argued below, and re-asserts on appeal, that she was acting in the interest of her client by refusing to proceed with the trial under the circumstances. This brings us to defendant's argument that her client's rights were violated by this contempt order; we reject that argument as without merit. The trial had been continued on October 25, 2007, specifically at defendant's request to produce Officer Lutz to testify. Due to her own conduct, however, the officer whom she had subpoenaed never had an opportunity to testify.

Defendant's reliance upon In re Mandell, 250 N.J. Super. 125 (App. Div. 1991), is misplaced. There, defense counsel in a criminal trial was held in contempt for her refusal to answer the trial judge's question during a pre-trial conference as to whether her client would testify. Id. at 128. We reversed, holding that "an attorney who knows whether or not a client intends to testify in a future criminal trial against him possesses constitutionally protected information confidentially transmitted. The attorney may decline to reveal that information to the [c]ourt and the State without committing an act of contempt." Id. at 131-32.

By contrast, the municipal judge here did not require defendant to divulge any "constitutionally protected information . . . ." Rather, the judge was simply attempting to proceed with "'the court's business . . . .'" In re Daniels, supra, 118 N.J. at 61. Therefore, defendant lacks any viable claim that her client's constitutional rights were jeopardized by the judge's order that she continue with the trial.

We are satisfied that defendant's conduct before the municipal judge on October 25, 2007, "undermine[d] the court's authority and . . . interfere[d] with or obstruct[ed] the orderly administration of justice . . . ." Ibid. Therefore, the municipal judge had "no alternative but . . . [to] assume responsibility to maintain order in the courtroom." Ibid. We conclude, therefore, that enforcement of that contempt order is "just under the circumstances." R. 2:10-4

Finally, we address the sanctions imposed upon defendant by the Law Division judge. Although defendant has not separately challenged these sanctions on appeal, we consider this issue pursuant to Rule 2:10-2, which provides that "the appellate court may, in the interests of justice, notice plain error not brought to [its] attention . . . ."

At the conclusion of the trial de novo on February 22, 2008, the Law Division judge postponed sentencing but directed the prosecutor to refer the matter "to the appropriate Committee on Attorney Ethics for their consideration." Thereafter, on April 4, 2008, the judge upheld the $500 fine imposed by the municipal judge, vacated the jail sentence and placed defendant on probation for one year with the condition that she perform sixteen hours of community service.

We are satisfied that the imposition of a $500 fine and referral to the Committee on Attorney Ethics are sufficient sanctions. Requiring defendant to serve a one-year probationary term with a condition of community service is, in our view, excessive under the circumstances. We therefore vacate that provision of the April 10, 2008 order.

Affirmed in part; modified in part.

 

Notwithstanding defendant's claims to the contrary in her colloquy with the municipal court judge on October 25, 2007, the record reflects that the judge imposed a $100 sanction "for a frivolous motion" on October 4, and did not hold her in contempt on that date.

(continued)

(continued)

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A-4395-07T4

August 14, 2009