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Where a Witness Is Incarcerated Pursuant to the Judiciary Law, After A Finding the Witness is In Contempt, and the Incarceration Is Not Specifically Imposed for a Definite Period As Punishment, But Rather Is Imposed to Induce the Witness to Obey the Court’s Order, the Contempt Finding is Civil in Nature—Double Jeopardy Will Not Bar Prosecution of the Witness for Criminal Contempt Under the Penal Law

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the contempt finding and incarceration of the defendant (under the Judiciary Law) following the defendant's refusal to testify at his brother's trial was civil, not criminal, in nature.  Therefore, the prohibition against double jeopardy did not bar the prosecution from charging the defendant with criminal contempt (under the Penal Law),  The Judiciary Law allows a finding of civil or criminal contempt.  Where, as here, a defendant is incarcerated in the hope that the incarceration will induce the defendant to follow the court's order (in this case the order to testify under immunity), but no period of incarceration is specifically designated and imposed as a punishment for failure to obey the court's order, the proceedings are civil in nature.

…”'[I]t is not the fact of punishment, but rather its character and purpose, that often serve to distinguish civil from criminal contempt” (… . Where a defendant is held in contempt for the remedial purpose of compelling compliance, imprisonment continues until such time as the contemnor acquiesces or is no longer able to do so … . Once the contemnor agrees, there is no remedial purpose to be served by continued confinement. The contemnor, therefore, holds “the keys of their prison in their own pockets” … .

In contrast, where a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended —by the contemnor's compliance with the law, then the contempt is not remedial but punitive. As the Supreme Court has stated, “[i]f the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and [the defendant] cannot shorten the term by promising not to repeat the offense” … . * * *

For a court to summarily punish contempt, our Judiciary Law requires issuance of an order “stating the facts which constitute the offense” and “plainly and specifically prescribing the punishment to be inflicted” (Judiciary Law § 755 [emphasis added]). Notably absent from County Court's order of contempt here is a plain and specific statement of the punishment to be imposed upon defendant. The record reveals that the court issued a mandate of commitment and that defendant was confined pursuant to that mandate; no where does the record indicate the precise term of commitment. * * *

In cases where a court invokes its contempt power to coerce a defendant's obedience, the best practice would be for the court to state on the record that defendant may purge the contempt through compliance with the law. However, based on the record before us, it is clear that County Court did not summarily adjudicate defendant in criminal contempt or impose a definite sentence of punishment in accordance with the Judiciary Law. Therefore, defendant's conditional imprisonment was for the remedial purpose of compelling defendant's testimony, and as a consequence defendant's subsequent prosecution for contempt was not barred by double jeopardy. People v Sweat, 2014 NY Slip Op 07292, CtApp 10-28-14

 

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