Decision and Order on Pretrial Motion Pretrial motion (CPL §255.10) by the defendant for relief in the nature of dismissal or reduction of an indictment, preclusion and/or suppression of evidence, and other relief. The defendant is charged by a single-count indictment with having committed the crime of criminal contempt in the second degree (Penal Law §215.50[1]]), a class A misdemeanor. The charges arise out of an incident alleged to have occurred on February 16, 2023, in the village of Lake Placid, town of North Elba, Essex County, when it is claimed that the defendant appeared in court dressed in a kangaroo costume and “thereafter did question the court’s knowledge of, and authority over the law, all while in view of the sitting justice, attorneys, other defendants and spectators.” The Court has considered the following papers on the motion: notice of motion dated May 4, 2023, an affirmation of James W. Hyde, IV, Esq., dated May 4, 2023, with exhibits A through C, an affidavit of Scott P. Lewis, sworn to May 4, 2023m a memorandum of law dated May 4, 2023, and a reply by James W. Hyde, IV, Esq., filed May 19, 2023, all in support of the motion; and an affirmation of Kenneth P. Borden, Jr., Esq., dated May 10, 2023, in opposition to the motion. The defendant moves to dismiss the indictment on the grounds that (1) the indictment is defective (CPL §210.20[1][a], §210.25), (2) the evidence before the grand jury was not legally sufficient to establish the offenses charged or any lesser included offense (CPL §210.20[1][b], §210.30), and (3) the grand jury proceeding was defective (CPL §210.20[1][c], §210.35). The defendant also moves to inspect the grand jury minutes (CPL §210.30). The motion to inspect the grand jury minutes is granted and the minutes, together with the exhibits received into evidence, have been reviewed to determine the issues presented. An indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime, such as by failing to allege that the defendant committed acts constituting every material element of the crime charged (People v. Iannone, 45 N.Y.2d 589, 600, 412 N.Y.S.2d 110, 384 N.E.2d 656). “While no particular form is constitutionally mandated, an indictment must afford a defendant ‘fair notice of the charges made against him, so that he can prepare a defense and in order to avoid subsequent attempts to retry him for the same crime or crimes.’ (People v. Wright, 112 A.D.2d 38, 39, 490 N.Y.S.2d 943 [dissenting opn], revd. on dissent 67 N.Y.2d 749, 500 N.Y.S.2d 98, 490 N.E.2d 1224.)” (People v. Ray, 71 N.Y.2d 849, 850, 527 N.Y.S.2d 740, 740-741, 522 N.E.2d 1037, 1038 [1988]). Incorporation by reference to the statute operates to constitute allegation of the elements of the crime (see People v. D’Angelo, 98 N.Y.2d 733, 750 N.Y.S.2d 811, 780 N.E.2d 496; People v. Ray, supra.; People v. Cohen, 52 N.Y.2d 584, 586, 439 N.Y.S.2d 321, 421 N.E.2d 813; People v. Squire, 273 A.D.2d 706, 706-707, 711 N.Y.S.2d 790). The Court has examined the indictment and finds that it is not defective and complies with CPL §200.50(7). “[A]n indictment is presumed to be based on legal and sufficient evidence” (People v. Bergerson, 17 N.Y.2d 398, 402, 218 N.E.2d 288, 290, 271 N.Y.S.2d 236, 238; see also People v. Howell, 3 N.Y.2d 672, 675, 171 N.Y.S.2d 801, 803, 148 N.E.2d 867, 868). In determining the sufficiency of the evidence before the grand jury, including proof encompassing any requisite culpable mental state (People v. Mayo, 36 N.Y.2d 1002, 374 N.Y.S.2d 609, 337 N.E.2d 124; People v. Lott, 104 A.D.2d 710, 480 N.Y.S.2d 597; People v. Delameter, 96 A.D.2d 629, 464 N.Y.S.2d 878), the Court must view such evidence in a light most favorable to the prosecution, and determine whether such evidence, if unexplained and uncontradicted, would constitute prima facie proof so as to warrant a conviction after trial (People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 474, 646 N.E.2d 774, 776; People v. Pelchat, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 83, 464 N.E.2d 447, 451; People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418; People v. Dunleavy, 41 A.D.2d 717, 341 N.Y.S.2d 500, affirmed 33 N.Y.2d 573, 347 N.Y.S.2d 448, 301 N.E.2d 432). “In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt” (People v. Mayo, supra at 1004, 374 N.Y.S.2d 609, 337 N.E.2d 124). “In determining whether the People have reached this stage, all questions as to the quality or weight of the proof should be deferred. In other words if the prosecutor has established a prima facie case, the evidence is legally sufficient ‘even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements.’ To further illustrate the point the Commission Staff noted that ‘evidence may be ‘legally sufficient’ to support a charge although it does not prove guilt ‘beyond a reasonable doubt,’ and for that matter, although it does not even provide ‘reasonable cause’ to believe that the defendant committed the crime charged.’ (See Commission Staff Comment to Proposed CPL 35.10, now CPL 70.10)” (People v. Sabella, 35 N.Y.2d 158, 167, 359 N.Y.S.2d 100, 108, 316 N.E.2d 569, 574-575). Testifying before the grand jury were the court clerks for the Village of Lake Placid and Town of North Elba justice courts, Victoria Duffy (Duffy) and Jennifer Hayes (Hayes), respectively. Duffy testified that during the defendant’s 2022 appearances he had sent Duffy an email in which he described the Village Court as “a kangaroo court”. She told the Grand Jury that the defendant was scheduled to appear in Village Court on February 16, 2023, and that prior to that date she had viewed social media video postings by the defendant in which he referred to the Village Court as “a kangaroo court”. She did not testify that the justice presiding at the February 16, 2023, appearance by the defendant had viewed those videos or that she had made the justice aware of the same. The prosecutor played two videos identified by Duffy as the being the ones she viewed on the defendant’s social media account. In one video, the defendant is speaking into the camera and appears to be in an arena. The defendant states that Justice David Coursen (Coursen) was previously a police officer for the Village of Lake Placid and that the defendant had obtained Coursen’s police department disciplinary record. The defendant appears to read from that record about an incident on Tuesday, December 4, 2007, when it was reported that Coursen had a common practice over the previous few months of sleeping while on duty with a subordinate present, that this created an officer safety issue for the officers present as well as reduced morale and productivity within the police department, and that Coursen had created an unsatisfactory work environment. The defendant then speaks directly into the camera and says, “Judge, I think that you’re falling asleep on your current job as well and I am coming to court on February 16th in a kangaroo costume.” The defendant goes on to say, “I’ve been pokin a lot of people in power, a lot of people in power, and I just want there to be a record that I have a 1.2 million dollar life insurance policy with a direct beneficiary for the…. NAACP”. The defendant then states that if something weird happens to him he wants to make sure that the NAACP gets the money. He closes the video with this statement: “Give me liberty or give me death. Can’t stop, won’t stop. Here it comes.” The prosecutor then played the second video for the grand jury which shows the defendant wearing a kangaroo costume and in which the defendant says that he is “back to court, back to court. Screwing people is just their sport” I’ve got my case packed [holds up a briefcase], and my joey pouch right [shows a kangaroo doll in a pouch on the costume]“. Duffy was not in court on February 16, 2023. Hayes testified that she was working as the court clerk in the Village Court on February 16, 2023, and that the presiding justice was Dean Dietrich (Dietrich). She told the grand jury that the defendant appeared at 9:00 a.m. wearing a kangaroo costume, and that there were approximately twelve to fourteen spectators, including criminal defendants, in the courtroom. Justice Dietrich asked the defendant to approach the bench and when the defendant did so Justice Dietrich asked the defendant to remove the costume. Hayes testified that the defendant told Justice Dietrich that he did not want to do so as he did not feel he was doing anything wrong. She also testified that the defendant left court, removed the outfit, and returned to court wearing shorts and carrying a small black bag, the costume, and the stuffed animal kangaroo. During the defendant’s arraignment, Hayes described the defendant as being “rude and disruptive frequently” and that the defendant did not want to have the court appoint a public defender to represent him. She told the grand jury that the defendant asked Justice Dietrich to cite the statue that allowed the court to assign counsel and accused Justice Dietrich of making up laws and rules. Hayes testified that the defendant removed a copy of the Constitution from his bag and asked Justice Dietrich to show him the law. As relevant here, “[a] person is guilty of criminal contempt in the second degree when he engages in * * * [d]isorderly, contemptuous, or insolent behavior, committed during the sitting of a court, in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority” (Penal Law § 215.50[1]). “The contempt provisions of the Judiciary Law and those of the Penal Law must be read together. ‘So read, the purpose is clear that an act is not the less punishable as a crime because it is also declared to be punishable as a contempt of court’ People v. McCann, 253 N.Y. 221, 170 N.E. 898.” (People v. Hayden, 129 Misc.2d 444, 446, 493 N.Y.S.2d 272, 274 [NY Co. Ct., 1985], affd, 128 A.D.2d 726, 513 N.Y.S.2d 220 [2d Dept., 1987], lv. denied “69 N.Y.2d 950, 516 NYS2d 1033, 509 NE2d 368 [1987]). “Trial courts no doubt must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Brown v. United States, 356 US 148, 153, 78 S Ct 622, 626, 2 L Ed 2d 589, 72 ALR2d 818 [1958]) In the context of speech, “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil…. (T)he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.’ Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947). ‘Trial courts…must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’ Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958).” (In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 [1972]; Here, the testimony describing the defendant’s statements to Justice Dietrich was devoid of specifics as to the particular words spoken, and no transcript or verbatim record of the proceedings was presented to the grand jury. The evidence before the grand jury generally described the defendant’s questioning of Justice Dietrich regarding assignment of counsel and the defendant’s expressed desire to represent himself, the defendant was correct in asserting his right to proceed pro se. “A criminal defendant may be permitted to proceed pro se if the request is timely and unequivocal, there has been a knowing and intelligent waiver of the right to counsel, and defendant has not engaged in conduct that would interfere with a fair and orderly trial (People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322).” (People v. Ryan, 82 N.Y.2d 497, 506, 605 N.Y.S.2d 235, 241, 626 N.E.2d 51, 57 [1993]). “To ascertain whether a waiver is knowing, voluntary and intelligent, a court must undertake a ‘searching inquiry’ designed to ‘insur[e] that the defendant [is] aware of the dangers and disadvantages of proceeding without counsel’ [citations omitted]“. (People v. Crampe, 17 N.Y.3d 469, 481, 932 N.Y.S.2d 765, 772, 957 N.E.2d 255, 262 [2011]). “To pass muster, a ‘searching inquiry’ must reflect record evidence that defendants know what they are doing and that choices are exercised ‘with eyes open’ (see, Faretta v. California, supra, at 835, 95 S. Ct. 2525, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268). ***** This Court has also signified that these record exchanges should affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver (see, People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 324 N.E.2d 322). To be sure, this dialogue may occur in a nonformalistic, flexible manner, but it must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication (see, People v. Kaltenbach, 60 N.Y.2d 797, 799, 469 N.Y.S.2d 685, 457 N.E.2d 791; see also, United States v. Plattner, 330 F.2d 271, 276-277).” (People v. Smith, 92 N.Y.2d 516, 520, 683 N.Y.S.2d 164, 167, 705 N.E.2d 1205, 1208 [1998]). There is no evidence here indicating whether Justice Dietrich engaged in such an inquiry. However, the defendant, “was therefore clearly entitled to as much latitude in conducting his defense as we have held is enjoyed by counsel vigorously espousing a client’s cause. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962). There is no indication, and the State does not argue, that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding. Therefore, ‘The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil…. (T)he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.’ Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947). ‘Trial courts…must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’ Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958).” (In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 [1972]). Turning to the defendant’s appearance in a kangaroo costume, his behavior certainly was an affront to the Justice Court. Yet, it is clear from the video evidence that the defendant wore the costume expecting former Justice Coursen, who the defendant believed had treated him unfairly, not Justice Dietrich. The evidence before the grand jury was that Justice Dietrich appropriately directed the defendant to leave court, remove the costume, and return for his appearance, and that the defendant readily complied. There was no evidence that the defendant’s appearance in the costume immediately imperiled the administration of justice, or caused or created a disruption to or interruption of the court proceedings., Viewing the evidence in the light most favorable to the prosecution, the evidence was legally insufficient to establish each and every element of the crime of criminal contempt in the second degree under subdivision 1 of Penal Law §215.50. “There is no indication, and [there is no evidence]…that [defendant's] statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding.” (In re Little, supra.), nor is there any evidence that the defendant’s costume did so. At most, the evidence presented Justice Dietrich with “the option to ‘consider [defendant] a harmless nut and forget it’” (Gordon v. United States, 592 F.2d 1215, 1218 [1st Cir., 1979]), an option which he wisely took since the evidence presented to the grand jury simply does not rise to the level of criminal contempt in the second degree. The defendant’s motion to dismiss the indictment on the grounds that the evidence before the grand jury was not legally sufficient to establish every element of the sole count of the indictment must therefore be, and hereby is, granted and the indictment is dismissed. The remaining issues raised by the parties need not be reached under Athe cardinal principle of judicial restraint B if it is not necessary to decide more, it is necessary not to decide more “(PDK Laboratories Inc. v. US DEA, 362 F.3d 786, 799 [Roberts, J, concurring]; see, also, People v. Carvajal, 6 N.Y.3d 305, 316, 812 N.Y.S.2d 395, 402, 845 N.E.2d 1225, 1232 [AWe are bound, of course, by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal"]). It is so ordered. Dated: October 12, 2023
