Opinion
88384/03.
Decided December 19, 2003.
Calabro Fleishell, P.C., New York City (Katherine Helbig and Thomas Fleishell of counsel), for petitioner-movant.
The Legal Aid Society, Civil Division, New York City (Kenny Schaeffer of counsel), for non-party respondent.
INTRODUCTION
The law firm of Calabro Fleishell, P.C., which represents the petitioner-landlord in this now-dismissed nonpayment proceeding, moves by order to show cause for sanctions and costs against non-party respondent Beverly Clark-Griggsby. According to the movant law firm, Clark-Griggsby, the respondent-tenant's daughter, spat on Katherine Helbig, an associate of the law firm, on October 7, 2003, in Part X of the Civil Courthouse in New York County, after this court transferred the case to Part X for referral to a trial part for a traverse hearing and trial. The court sustains the charge of spitting.
The law firm also moves for sanctions on the ground that Clark-Griggsby repeatedly used abusive language toward Helbig and Thomas Fleishell, a partner of the law firm. The court overrules the charges of abusive language. Some of Clark-Griggsby's language was within the bounds of tolerable incivility that occasionally afflicts litigants and lawyers. Some of her language was not offensive at all; it was misunderstood in the overheated atmosphere of litigation. Some of her language is too remote in time to be sanctionable now. It occurred during an earlier holdover proceeding, although it is relevant to this motion to explain motive and to answer Clark-Griggsby's defense that the spitting was accidental if it happened at all. And some of her language responded to Fleishell's, thus arising in an unfortunate form of self-defense.
As this opinion makes clear, Clark-Griggsby committed criminal contempt. But the law firm never moved for criminal contempt. It seeks only sanctions and costs. And only a party or an attorney may be sanctioned or required to pay costs under Part 13-1 (NYCRR) § 130-1.1 (a) or (b). Clark-Griggsby is neither a party nor an attorney. Movant's motion for sanctions and costs must therefore be denied.
FINDINGS OF FACT
The Hearing
The court held a hearing on November 10 and December 10, 2003. Testifying for the movant were Helbig, Fleishell, and David Armstrong, a court officer with the New York State Unified Court System, who was subpoenaed. Testifying for Clark-Griggsby were herself; Brenda Travis, her mother's home-care attendant; Ken Pfleshinger, a guardian ad litem in Housing Court and Clark-Griggsby's friend; and Michael Halpert, a respondent in this part whom Clark-Griggsby met in court on October 7, 2003. The court credits all the testimony but key aspects of Clark-Griggsby's. The court deems Travis's, Pfleshinger's, and Halpert's testimony irrelevant on whether Clark-Griggsby spat on Helbig. All Pfleshinger and Halpert testified to was that Clark-Griggsby is a good person who has never expressed to them any prejudice against Caucasians or lesbians. They knew nothing about the spitting in question. Travis testified about Clark-Griggsby's poor relations with Fleishell but offered no specifics helpful to the court.
The court also declines to consider the testimony of Fleishell, who did not witness any spitting. To the extent that he testified to occasions when Clark-Griggsby used abusive language toward him, the court cannot presume to judge what happened between the two of them. Suffice it to say that both have ample reasons for disliking one another and, sadly, both gave as good as they got.
Discounting the irrelevant, the unproven, and Travis's, Pfleshinger's, Halpert's, and Fleishell's testimony, the court is left with two contentions arising from two incidents. The first is that Clark-Griggsby told Helbig that she smells and is a lesbian. The second is that Clark-Griggsby spat on Helbig.
The January or February 2003 Accusation
In late January or early February 2003, in Judge Cyril K. Bedford's courtroom during the holdover proceeding, Clark-Griggsby, according to Helbig and Armstrong, told Helbig derisively that she smelled and is a lesbian. This testimony is not a basis on which to sanction Clark-Griggsby, but it is admissible because it sheds light on whether she spat on Helbig. ( See People v. Orbaker, 302 AD2d 977, 977 [4th Dept, mem] [finding in prosecution for criminal contempt that testimony about spitting completes narrative and sheds light on motive], lv denied 100 NY2d 541; see also generally People v. Alvino, 71 NY2d 233, 241-242 [upholding admission of other-act evidence whose probative value exceeds its prejudicial effect]; People v. Ventimiglia, 52 NY2d 350, 355-356, 360 [allowing admission of other-act evidence on direct case]; People v. Molineux, 168 NY 264 [finding other-act evidence admissible to prove motive or intent and to undercut claim of mistake or accident].)
Armstrong's testimony was the subject of an in limine Ventimiglia ruling before he testified. What Armstrong testified to about what Clark-Griggsby said to Helbig not only corroborates Helbig's testimony, which itself was entirely honest, but is reliable because Armstrong has no motive to exaggerate. The court watched Armstrong closely. He recounted an event through which he lived, he testified the same way on direct and on cross-examination, his memory is clear about what happened, and he was not impeached about anything on cross. Armstrong, an impressive witness, made no mistake about what he saw and heard. After he heard Clark-Griggsby's odious, noisome comments, he asked her to leave the courtroom because, he said in testimony admissible as going to his state of mind, slurs of that nature have no place in court.
Clark-Griggsby's testimony about whether she told Helbig that she smells and is a lesbian was an example of admit and avoid. She told the court that perfume triggers her mother's asthma and that her mother, complaining about a smell, asked her what the smell was. Clark-Griggsby testified that she told her mother, not Helbig directly, that the smell emanated from perfume worn by the lady with short hair, referring to Helbig, and that she never called Helbig a lesbian. Clark-Griggsby explained that she has no animosity toward lesbians, in part because her mother was one. Clark-Griggsby added that she assumed that Armstrong asked her to leave the courtroom because she was loud, not because of the content of her remarks.
The court rejects Clark-Griggsby's testimony as a fabrication. It contradicts Helbig and Armstrong's accurate testimony and is implausible.
The October 2003 Accusation
The second incident is the spitting. Helbig testified that she was in Part X, a clerk's office, on October 7, 2003, having been referred there by this court, when Clark-Griggsby spat at her from the right, with the secretion landing on the floor and some of it possibly on her leg. According to Helbig, the spitting was preceded by nothing that might have engendered hostile feelings against her, other than that she represented her client. Thus, Helbig told the court, Helbig and Clark-Griggsby were not talking before the spitting took place and had no interaction. The court concludes from Helbig's testimony that she was innocent of any act that might have provoked any confrontation between her and Clark-Griggsby, let alone being spat upon.
The court accepts Helbig's recantation of the event. Notable are three things. First, in her re-living the event, on direct and on rebuttal, she recreated for the court's benefit how Clark-Griggsby spat on her. The court played close attention to the way in which she described how Clark-Griggsby faced her. Helbig's descriptions matched her testimony perfectly. Second, immediately after the spitting, Helbig complained to this court, crying. She testified to that complaint, admissible as an excited utterance, and this court told the parties about that complaint before the hearing began and again during the hearing. Although the court firmly discounts in deciding this motion everything Helbig told the court on October 7 and considers only what was admitted into evidence at the hearing, Helbig's prompt complaint, as she testified to it at the hearing, lends credibility to her accusation. Third, Helbig's varying testimony adds credence and integrity to her presentation. When she testified on direct she told the court that some of the sputum went on her leg, and when she testified on rebuttal she said that although Clark-Griggsby aimed her spit at her, she was not entirely certain whether any sputum actually touched her but that if it did it went on her leg. The court finds Helbig honest because she did her best not to inculpate Clark-Griggsby.
This court has no doubt that at least some spit landed on her. Helbig's final uncertainty on that question reflects her own attempt weeks afterward to minimize the abuse Clark-Griggsby placed on her and her interest on uttering not the slightest exaggeration. Whether any sputum landed on Helbig is not dispositive in any event. Dispositive is not whether Clark-Griggsby missed her target but whether she directed her spit at Helbig, and she did.
Part of the proof that Clark-Griggsby intentionally spat at Helbig comes from Clark-Griggsby herself. She offered two reasons why Helbig misunderstood what happened, all, again, using the admit-and-avoid pattern. Both explanations are prevarications.
First, Clark-Griggsby testified, as the defendant did in Cardova v. Baca ( 346 F3d 924, 925 [9th Cir 2003]), that she sneezed, not spat. Like the jury in Cardova, which rejected that defense in a prosecution for assault by spitting, this court rejects that defense, too. Clark-Griggsby eliminated any possibility that what might have accidentally lunged was really from an inadvertent sneeze: She testified that she purposely sneezed in the opposite direction (to the left) of where she saw Helbig seated and that she was certain she caught every drop of her mucus in her paper tissue. If Clark-Griggsby's spitting was really an accident, as she claims, nothing would have lunged, according to her version of the events.
Important also is that in response to this court questioning, Clark-Griggsby explained in excruciating detail the blow-by-blow of how she sneezed, where she sneezed, where she was when she sneezed, and from where she took her tissue. It was impossible for her to remember these second-by-second details. She testified that she did not know about Helbig's accusation until weeks after the incident, when she was served with this order to show cause moving for sanctions. Further, she testified that despite a condition that caused her to sneeze frequently on October 7, 2003, she remembered almost nothing about her previous or subsequent sneezes that day. And she testified that she did not recall that only a few days after the spitting incident, Judge Laurie L. Lau found her testimony untruthful, when the traverse hearing in this proceeding was finally held, thus showing a faulty memory on her part even for significant details. The court cannot credit a witness who recalls things no one else could recall — like the finest particulars of one sneeze from weeks earlier (and no other sneezes) — but forgets things that stay with most of us forever, like a judge telling you that you lied after you swore to tell the truth.
Clark-Griggsby's second explanation fares even worse than her first. She testified that if she spat, it was because she has "a juicy mouth" that causes her to spray when she talks. She told the court that she might have "a juicy mouth" because a dog bit her many years ago and ripped up the right side of her mouth and lip. The court discredits that explanation. Because the court never noticed that she sprays when she talks (she does not have a lisp, and her speech is measured), the court asked her, "Who told you that you spit when you talk." She answered that her lawyer told her so. When the court asked her whether anyone else in her life had said something about whether she sprays when she speaks, she said that one other person in her life (she is 62 1/2 years old) told her so, and she did not name the person, say when she was told that, or describe the circumstances. What she did, instead, was look down at the floor, a tell-tale sign of untruthfulness, when she answered that question.
Moreover, Clark-Griggsby's entire testimony about her spraying while talking to Helbig, as opposed to spitting at her, is impossible. Clark-Griggsby testified that she was not talking to anyone when she passed by Helbig in Part X.
CONCLUSIONS OF LAW
With the court's finding that Clark-Griggsby intentionally spat at Helbig out of an animus Clark-Griggsby showed when she told Helbig that she smelled and is a lesbian, the issue is whether the spitting is sanctionable. Conduct is sanctionable under Part 130 (22 NYCRR) § 130-1.1 (c) (2) if it is frivolous, and conduct is frivolous if "it is undertaken primarily to * * * harass or maliciously injure another." Movant argues that if an attorney should be sanctioned under Part 130 for the "use of course '"gutter" language in addressing opposing counsel'" ( Mink v. Conifer Park, Inc., 142 AD2d 899, 902 [3rd Dept 1988, mem], cited with approval in Day v. NYP Holdings, Inc., 290 AD2d 342, 343 [1st Dept 2002, mem]), she should be sanctioned for spitting.
But only a party or an attorney may be sanctioned or required to pay costs under § 130-1.1 (a) or (b). Subdivision (a) provides for sanctions against "any party or attorney." Subdivision (b) provides for costs and sanctions "against either an attorney or a party to the litigation or both." Griggsby-Clark is neither a party nor an attorney. Movant's motion for sanctions must therefore be denied. A court may not sanction or impose costs if there is "neither a statute nor a court rule authorizing the imposition of sanctions for frivolous actions." ( See e.g. Matter of A.G. Ship Maint. Corp. v. Lezak, 69 NY2d 1, 6.)
Although the following is not necessary to determine the motion, it is written for anyone interested in the ramifications of the conduct in which Clark-Griggsby engaged.
Spitting is not simply sanctionable — when committed by a party or an attorney. Spitting on someone in court constitutes criminal contempt. This court once witnessed a defendant spit on an attorney a few moments after the defendant was sentenced to 1 1/2 3 years in jail. In response, the sentencing judge — for whom this court clerked at the time — resentenced the defendant consecutively to 24 years' and 30 days' incarceration for criminal contempt summarily imposed. With that, the defendant was sentenced to a top of 13 months in jail for spitting on a lawyer. ( See People v. Graham, 228 AD2d 299, 299-300 [1st Dept 1996, mem] [dismissing without comment objection to resentence and to conviction and sentence for criminal contempt].)
Other jurisdictions also take spitting seriously. In Knox v. Municipal Ct. of Des Moines ( 185 NW2d 705 [Iowa, 1971]), the court affirmed a sentence of six months in jail for criminal contempt, imposed after a plenary hearing, for spitting on a judge in court.
It is unsurprising that spitting is contemptuous. As one author opined, "to spit means 'to eject saliva as an expression of aversion or contempt.'" (W. Dudley McCarter, Vexatious Refusal Statute Does Not Preempt Other Claims Against Insurance Companies, 56 Missouri BJ 77, 80 [Mar./Apr. 2000].) Thus, "[w]hile it is highly unpleasant to be spat upon, * * * by far the greatest element of offense derived from the contempt that the acts expressed and the humiliation that they were intended to inflict." (Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 BU L Rev 1275, 1322 [1998].) Spitting is contemptuous in every culture, and so it has always been. In the Latin editions of the New Testament, "the use of such verbs as conspuo * * * mean[s] to spit on someone in a show of contempt * * * * [A] gesture like spitting [is] treated as a universal form of abuse * * * * (James Q. Whitman, Enforcing Civility and Respect: Three Societies, 109 Yale LJ 1279, 1318 n 108 [2000].)
Spitting is not just contemptuous. It is unhygienic. The Second Department recently observed in Doyaga v. Columbia Pres. Hosp. Med. Ctr. ( 307 AD2d 333, 334 [2nd Dept 2003, mem]) that spitting can cause "Hepatitis C, a potentially fatal disease."
Spitting on someone is not an assault in New York State because of the required physical-inquiry element ( See Penal Law § 10.00.) But spitting on someone in New York is disorderly conduct that subjects a defendant to jail for up to thirty days. As one New York court explained, upholding a jail sentence for spitting, "Certainly, one can conceive of no more offensive, abusive or insulting conduct than the spitting upon the person of another * * * * Such conduct is calculated to incite others to acts of violent retaliation." ( People v. Rabey, 48 NYS2d 937, 939 [Binghamton County Ct 1944].)
Spitting also satisfies the element of "physical contact" under Penal Law § 240.30 (3) in a prosecution for aggravated harassment. ( See People v. Carlson, 183 Misc 2d 630, 634 [Crim Ct, NY County 1999].) That charge is a possibility here because of the combination of Clark-Griggsby's spitting and her gratuitous, derogatory comment about Helbig's supposed sexual preference. A charge of aggravated harassment, a class A misdemeanor, can lead to a year in jail.
So offensive is spitting that although it does not satisfy New York's physical-injury requirement for an assault conviction, some, including the late Judge Glasser, have suggested that spitting might satisfy the Penal Law's substantial-pain requirement. ( See Harvey Glasser and Brian Carroll, Outside Counsel, "Substantial Pain" as Physical Injury Under the Penal Law, NYLJ, July 6, 1990, at 1, col 1 ["'It seems that any injury whatsoever, be it ever so small, being actually done to the person of a man in angry, revengeful, rude, or insolent manner, as by spitting in his face, * * * are batteries in the eye of the law.'"), quoting 2 Joel P. Bishop, A Treatise on Criminal Law § 70 [1882].)
Although not an assault in New York, spitting can be a federal assault. In United States v. Frizzi ( 491 F2d 1231 [1st Cir 1974]), for example, the defendant spit on a letter carrier. Upholding the conviction for assault, the First Circuit found that spitting violates 8 USC § 111, which does not require inflicting bodily injury. The First Circuit wrote that spiting "is an application of force to the body of the victim, a bodily contact intentionally highly offensive." ( Id. at 1232.) In United States v. Ferrugia ( 604 F Supp 668 [ED NY 1985], affd without op 779 F2d 36 [2d Cir 1986]), then-District Judge McLaughlin noted that spitting is a federal crime under 18 USC § 1513 (b) and discussed how the defendant in Ferrugia was remanded to jail and sentenced to two concurrent five-year jail terms, and then properly prosecuted again for his acts, after he spat on a prosecutor in the Eastern District courthouse. In United States v. Moreno (60 Fed Appx 353 [2d Cir 2003]), the Second Circuit, finding the objection to the jury charge waived, upheld a one-year sentence against someone who spat on a federal law-enforcement officer. And in Mathias v. Accor Econ. Lodging, Inc. ( 347 F3d 672, 676 [7th Cir 2003]), Circuit Judge Posner wrote that "deliberately spitting in a person's face [is] a criminal assault."
Spitting is a battery in most jurisdictions. In State v. Keller ( 40 Ore App 143, 146, 594 P2d 1250, 1252), the Oregon Court of Appeals held that spitting is "offensive physical contact": "[S]pitting on another can be an interference with the physical integrity of the victim that is comparable to striking, slapping, etc." ( Id., 594 P2d at 1252.) In People v. Peck ( 260 Ill App 3d 812, 814, 198 Ill Dec 760, 633 NE2d 222, 223, citing Regina v. Cotesworth, 6 Mod Rep 172 [Q.B., 1705] [holding that spiting is a battery]), the Illinois Supreme Court wrote that "since the development of early common law, spitting has been recognized as an act sufficient to support a battery."
The literature is replete with penalties for spitting. The court earlier noted the jail sentences other courts have imposed, though some spitters have received relative slaps on the wrist. Roberto Alomar spat on umpire John Hirchback and was suspended for only five games. ( See Stephen R. Bough, Spitting in a Judge's Face: The 8th Circuit's Treatment of Rule 37 Dismissal and Default Discovery Sanctions, 43 San Diego L Rev 36, 36 [1998].) Still other spitting incidents have earned unusual sentences. One California judge "forc[ed] a defendant who beat another man for spitting on his car to give the automobile to a battered women's shelter." (William R. Betesh, Note, Has the State Gone Too Far? Testing the Constitutionality of Probation Conditions That Limit a Probationer's Right to Procreate, 26 Seton Hall Leg J 459, 473 n 67 [2002].) And if you spit on your assigned criminal-defense lawyer, you might forfeit your right to counsel. ( See e.g. People v. Wilkerson, 294 AD2d 298, 298 [1st Dept, mem] [upholding sentence of 7-14 years following jury trial without counsel because defendant spat on lawyer pretrial to delay proceedings], lv denied 98 NY2d 772.)
Punitive damages have a long history of being awarded for spitting. In one case, from 1872, the Illinois Supreme Court upheld a jury award of $1000, a handsome sum in those days, against a man who spat on another man in a courthouse. ( See Alcorn v. Mitchell, 63 Ill 553, 553.) The issue before the Supreme Court was whether the trial judge correctly instructed the jury that it could award punitive damages. The court said yes, with these words:
"The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved by saving the necessity of resort to personal violence as the only means of redress.
"Suitors, in the assertion of their rights, should be allowed approach to the temple of justice without incurring there exposure to such disgraceful indignities, in the very presence of its ministers.
"It is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity.
"An exasperated suitor has indulged the gratification of his malignant feelings in this despicable mode. The act was the very refinement of malice." ( Id.)
The conclusion from all this is that in New York and elsewhere, spitting is a crime of harassment and worse because of the malicious injury it is meant to cause. Someone — assuming a party or a lawyer — who intentionally spits on a lawyer in court does so by definition "to harass or maliciously injure" under Part 130-1 (22 NYCRR) § 130-1.1 (c) (2).
DISPOSITION
Clark-Griggsby has devoted her life to public service and charitable projects. After working for many years for the New York City Bureau of Child Welfare, now the Administration for Children's Services, she joined the New York City Human Resources Administration, where she rose to prominent positions. She took an early buy-out ten years ago and since then has founded projects for children and AIDS victims in Harlem. She has expended not only her time and talents but also her money, generously supporting her projects with her meager pension; when the court asked her about her good deeds, she choked and shed a tear. For the past few months she has been a guardian ad litem in Housing Court, appearing before this court. As an independent contractor approved by the Civil Court and chosen by judges case by case from a list of eligible candidates, she works hard and successfully for her wards, all for slight compensation.
In her favor is that she is not a lawyer. But as a guardian ad litem she, like all adults, should know that the rules of engagement forbid spitting. And in her favor is that at the end of the hearing, she apologized to Helbig. But she never admitted to spitting intentionally. Instead, she lied to the court and to Helbig.
Given the circumstances of this unfortunate proceeding and the factual findings against a guardian ad litem of this court, this opinion is referred to the court's supervising and administrative judges.
This opinion is the court's decision and order.