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Wilfulness Is Not an Element of Civil Contempt/Supreme Court Properly Drew a Negative Inference from Defendant’s Invocation of His Fifth Amendment Right Against Self-Incrimination

In an extensive opinion by Judge Rivera, the Court of Appeals affirmed the finding of civil contempt re: an order in a matrimonial matter. The Court of Appeals determined Supreme Court properly drew a negative inference from defendant’s invocation of his Fifth Amendment right against self-incrimination. The Court of Appeals rejected defendant’s argument that “wilfulness” is an element of civil contempt:

… [N]owhere in Judiciary Law § 753 [A] [3] is wilfulness explicitly set forth as an element of civil contempt (Judiciary Law § 753 [A] [3]…). Indeed the only mention of wilfulness for civil contempt is in § 753 [A] [1], which is not at issue in this case as it applies only to “[a]n attorney, counsellor, clerk, sheriff, coroner,” or someone otherwise selected or appointed for judicial or ministerial service. In contrast, Judiciary Law § 750, the criminal contempt provision, permits a court to impose punishment for criminal contempt only for “wilful disobedience to its lawful mandate” (Judiciary Law § 750 [A] [3]…). This statutory language makes clear that where the legislature intended to require wilfulness, it knew how to do so, and any omission of such element is intentional … . …

Apart from the statute, this Court has not imposed a wilfulness requirement for civil contempt… . El-Dehdan v El-Dehdan, 2015 NY Slip Op 07579, CtApp 10-20-15

 

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