        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

433
OP 13-01643
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF MICHAEL D. SCHMITT, PETITIONER,

                    V                               MEMORANDUM AND ORDER

HONORABLE JAMES J. PIAMPIANO, RESPONDENT.


MICHAEL D. SCHMITT, ROCHESTER, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department pursuant to CPLR 506 [b] [1]) to annul and set aside the
determination of respondent finding petitioner in contempt.

     It is hereby ORDERED that the determination is unanimously
annulled on the law without costs and the petition is granted.

     Memorandum: Petitioner commenced this original CPLR article 78
proceeding pursuant to CPLR 506 (b) (1) seeking to annul the
determination finding petitioner in contempt of court and imposing a
fine of $500. The conduct resulting in the order of contempt occurred
while petitioner, an attorney appearing before respondent as defense
counsel in a criminal case, cross-examined a prosecution witness
regarding his criminal history.

     Initially, we note that the order recites that it was a
commitment for “[c]ivil [c]ontempt,” but respondent contends that this
was actually a summary criminal contempt adjudication pursuant to
Judiciary Law § 750 (A) (3) based on petitioner’s willful disobedience
of a court ruling. We agree with respondent that this was an order of
criminal contempt inasmuch as “the aim . . . [was] solely to punish
[petitioner] for disobeying a court order” (Matter of Department of
Envtl. Protection of City of N.Y. v Department of Envtl. Conservation
of State of N.Y., 70 NY2d 233, 239; see Matter of McCormick v Axelrod,
59 NY2d 574, 582-583, order amended 60 NY2d 652). We therefore
disregard the mistaken reference to civil contempt in the order, as
well as the reference to Judiciary Law § 774, which has no relevance
to the finding of contempt inasmuch as respondent did not impose a
period of imprisonment (see generally CPLR 2001, 5019 [a]).

     We agree with petitioner that the record does not support a
finding of contempt. A court may punish a person for criminal
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                                                         OP 13-01643

contempt where, inter alia, the person is guilty of willful
disobedience of a lawful mandate (Judiciary Law § 750 [A] [3]). To
sustain the finding of criminal contempt, there must exist “an
unequivocal mandate” (Department of Envtl. Protection of City of N.Y.,
70 NY2d at 240), and we conclude that there was no such mandate here
(see Matter of Dobozin v Tills, 6 AD3d 1220, 1220). During the
criminal trial, respondent noted that the prosecution witness had a
youthful offender robbery adjudication that petitioner could question
him about because the witness opened the door to such testimony.
Respondent, however, did not unequivocally mandate that petitioner was
precluded from asking the witness whether he was “convicted” of
robbery. In light of our determination, we do not consider
petitioner’s remaining contention.




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
