Wallach, J. (dissenting). I respectfully dissent, not on the ground that counsel’s conduct fell short of contumacious behavior, but because the record lacks proof of what we have held to be an additional essential element of the crime of criminal contempt: namely, that, in the language of 22 NYCRR 604.2 (a) (1) (i), the conduct complained of either "disrupts or threatens to disrupt proceedings actually in progress” or that the conduct undermines the dignity of the court to the extent "it appears unlikely that the court will be able to continue to conduct its normal business in an appropriate way”. This provided the fundamental rationale of our decision in Matter of Breitbart v Galligan (135 AD2d 323), where we vacated a contempt conviction citing a similar failure of proof, despite the equally egregious character of the attorney’s attack on the court there. The mere fact that in Breitbart the trial court deferred the imposition of sentence to the end of the case provides a distinction without a difference in addressing the instant issue. Neither in Breitbart, nor in this matter, were we asked to review the penalty imposed, nor the manner of its imposition. In any event, the contempt ruling before us now was likewise imposed at the "end” of the motion proceedings, and indeed may be said to have decisively ended them.
Long-standing jurisprudence establishes that "[a]n obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest.” (Ex parte Hudgings, 249 US 378, 383; see, In re McConnell, 370 US 230; In re Michael, 326 US 224, 227.) Injury to the sensibilities of the offended Judge is not the test (In re Little, 404 US 553, 554; Craig v Harney, 331 US 367, 376; Offutt v United States, 348 US 11, 14).
The locus in quo of the alleged crime was at the call of a motion calendar at Criminal Term. The transcript of the entire transaction consists of three pages and could have consumed no more than the same number of minutes. Two thirds of the colloquy was routine and unexceptional; the contemptuous remark appears at page 3. Just before it the Judge issued a direction to "call the next case.” There is no showing of any obstruction in the hearing of the next case, or, for that matter, in the disposition of the pending motion in this case. On this record it would appear that the good ship Justice sailed serenely on, without a one-degree compass point deviation from its appointed course. Additional evidence is required to support any finding to the contrary.
*153For the reasons stated, I would grant the petition and vacate the adjudication of summary contempt, without prejudice to renewal of contempt proceedings at a plenary hearing before another Justice.
Sullivan, J. P., Kupferman, Ross and Smith, JJ., concur in a Per Curiam opinion; Wallach, J., dissents in a separate opinion.
Application in the nature of a writ of prohibition, unanimously denied and the proceeding dismissed, without costs.