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CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the chairperson of the Board of Parole should not have been held in civil contempt for a purported failure to follow Supreme Court’s order. After an inmate contested the denial of parole in an Article 78 action, Supreme Court granted the inmate’s petition and ordered the parole board to hold a de novo parole “hearing.” The parole board conducted a parole “interview.” The inmate then moved to hold the parole board chairperson in contempt for failing to conduct a “hearing.” The opinion is comprehensive and too detailed to fairly summarize here. In a nutshell, the Second Department determined the Executive Law does not call for a “hearing” in this context, only an “interview:”

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Pursuant to the relevant provisions of the Executive Law governing the Board’s procedures, we conclude that the court was without authority to order a de novo evidentiary “hearing,” as the petitioner was only entitled to a de novo parole release “interview” and review (see Executive Law § 259-i[2][a][i]). Applying our well-established contempt jurisprudence, it cannot be said that the language employed in the judgment … , was clear and unambiguous since the Board could have reasonably understood and interpreted the judgment as directing it to conduct a de novo interview consistent with the requirements of the controlling statutory language. Contempt findings are inappropriate where, as here, there can be a legitimate disagreement about what the terms of an order or judgment actually mean … . The Board endeavored to comply with the judgment … , by providing a de novo parole release interview with a reconsideration of the petitioner’s record consistent with its statutory mandate under the Executive Law and consistent with its common practices. Matter of Banks v Stanford, 2018 NY Slip Op 00829, Second Dept 2-7-18

CRIMINAL LAW (PAROLE, CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT))/PAROLE (CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT))/ADMINISTRATIVE LAW (PAROLE BOARD, CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT))

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BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT).

The Third Department determined criminal contempt charges were not precluded by the double jeopardy rule. As part of a neglect proceeding defendant admitted violating orders of protection. Although a 60-day period of incarceration was part of the disposition, it was repeatedly delayed as the court monitored defendant’s compliance (and was never imposed). Because the incarceration was deemed to induce compliance with Family Court’s orders, it was remedial, not punitive in nature. Therefore a subsequent prosecution for criminal contempt, arising from the violations of the orders of protection, did not violate the double jeopardy prohibition:

 

The double jeopardy protections of the US and NY Constitutions “shield a defendant from multiple criminal punishments arising from the same offense” … . Whether double jeopardy bars a criminal prosecution subsequent to a finding of contempt or similar violation of a court order depends not on the labels used to describe the previously imposed sentence, but on “the character and purpose” of that sentence … . In a contempt matter, the sentence imposed for violation of a court order is remedial if it was intended “to coerce compliance” with a court order … . By contrast, when “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 [or a court order], then the contempt is not remedial but punitive” … . Double jeopardy precludes “a subsequent prosecution where a prior contempt sentence serves a punitive rather than remedial purpose” … . However, if the imposed sentence was remedial, double jeopardy does not apply … . People v Lamica, 2017 NY Slip Op 07646, Third Dept 11-2-17

 

FAMILY LAW (ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/CONTEMPT (FAMILY LAW, ORDERS OF PROTECTION, CONTEMPT, DOUBLE JEOPARDY, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))/DOUBLE JEOPARDY (FAMILY LAW, ORDERS OF PROTECTION, CRIMINAL CONTEMPT, ORDERS OF PROTECTION, BECAUSE INCARCERATION IMPOSED AS PART OF A FAMILY COURT NEGLECT/PROTECTIVE-ORDER-VIOLATION DISPOSITION WAS REMEDIAL, NOT PUNITIVE, CRIMINAL PROSECUTION FOR CONTEMPT STEMMING FROM THE VIOLATIONS OF THE PROTECTIVE ORDER NOT PRECLUDED BY THE DOUBLE JEOPARDY RULE (THIRD DEPT))

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CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined that a contempt order in a civil proceeding involving the same funds defendant was accused of stealing in the criminal action: (1) was not Molineux evidence because it involved the same subject matter as did the criminal action; and (2) the probative value of the order on the question of intent outweighed its prejudicial effect:

“When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury’s human tendency to more readily believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” … . In other words, the courts limit the admission of Molineux evidence because of the danger that the jury might conclude that if the defendant did it once, he or she likely did it again.

Where, as here, the evidence at issue is relevant to the very same crime for which the defendant is on trial, there is no danger that the jury will draw an improper inference of propensity because no separate crime or bad act committed by the defendant has been placed before the jury. * * *

The Appellate Division correctly concluded that the contempt order was relevant to prove defendant’s larcenous intent because “it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive [the business entity] of the diverted money permanently” … . People v Frumusa, 2017 NY Slip Op 04495, CtApp 6-8-17

CRIMINAL LAW (EVIDENCE, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/EVIDENCE (CRIMINAL LAW, MOLINEUX, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)/MOLINEUX EVIDENCE (CRIMINAL LAW, CONTEMPT ORDER IN A CIVIL MATTER INVOLVING THE SAME FUNDS AS DEFENDANT WAS ACCUSED OF STEALING IN THE CRIMINAL MATTER IS NOT MOLINEUX EVIDENCE, THE PROBATIVE VALUE OF THE ORDER ON THE QUESTION OF INTENT OUTWEIGHED ITS PREJUDICIAL EFFECT)

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DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT.

The Second Department, reversing Supreme Court, determined that plaintiff-husband’s motion to hold defendant-wife in contempt for failure to comply with the court’s order concerning the couple’s finances and debts should have been granted. Supreme Court denied the motion on the ground plaintiff had not exhausted other enforcement procedures. The Second Department noted that the Domestic Relations Law had been changed to remove the exhaustion requirement:

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Here, the plaintiff demonstrated that the defendant violated certain provisions of the separation agreement … . Through his affidavit, the plaintiff demonstrated that when the defendant took over management of [the couple’s business’s] finances following the sale of the marital home, she refused to pay off their joint credit card debt and did not share the proceeds from [the business’s] monthly rental income equally with him, thereby prejudicing his rights under the separation agreement … . Although the Supreme Court found that the plaintiff had not met his burden, in part, because he did not exhaust other enforcement remedies before filing the instant motion, we note that Domestic Relations Law § 245 was amended, effective September 29, 2016, to remove the exhaustion requirement (L 2016, ch 365, § 1). The Legislature directed the amendment to “take effect immediately,” and apply “to all actions whenever commenced as well as all judgments or orders previously entered” (id. § 2). Accordingly, the plaintiff’s failure to show that he exhausted other enforcement remedies before seeking to hold the defendant in contempt does not bar him from obtaining that relief. Cassarino v Cassarino, 2017 NY Slip Op 02623, 2nd Dept 4-5-17

FAMILY LAW (DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT)/CONTEMPT, CIVIL (FAMILY LAW, DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT)/DOMESTIC RELATIONS LAW (DOMESTIC RELATIONS LAW NO LONGER REQUIRES EXHAUSTION OF ENFORCEMENT REMEDIES BEFORE A MOTION FOR CIVIL CONTEMPT CAN BE BROUGHT)

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FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT.

The Third Department determined a sentence of incarceration for father’s willful failure to pay child support was proper. However, because the support was paid by father prior to sentencing, Family Court abused its discretion by issuing the order of commitment:

Upon a willful violation, Family Court is authorized to impose a sentence of incarceration of up to six months … . Such a sentence is in the nature of a civil contempt, which “may only continue until such time as the offender, if it is within his or her power, complies with the support order” … . Since respondent cured the default prior to sentencing, we conclude that Family Court abused its discretion by issuing the order of commitment. Matter of Provost v Provost, 2017 NY Slip Op 01422, 3rd Dept 2-23-17

FAMILY LAW (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)/CHILD SUPPORT (FATHER PAID CHILD SUPPORT PRIOR TO SENTENCING FOR WILLFUL FAILURE TO PAY, FAMILY COURT SHOULD NOT HAVE ISSUED THE ORDER OF COMMITMENT)

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MOTHER FAILED TO FIRST USE LESS DRASTIC CHILD-SUPPORT ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED.

The Third Department determined mother’s motion to hold father in civil contempt for alleged failure to pay child support and related expenses was properly denied. Mother did not first attempt to enforce the relevant provisions of the stipulation with a less drastic mechanism:

In matrimonial actions, Domestic Relations Law § 245 grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 756 where the party defaults “in paying any sum of money” required by a judgment or order, “and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced” pursuant to the enforcement mechanisms provided in Domestic Relations Law §§ 243 and 244 and CPLR 5241 and 5242. “A civil contempt motion in a [matrimonial] action should be denied where the movant fails to make a showing pursuant to section 245 that resort to other, less drastic enforcement mechanisms had been exhausted or would be ineffectual'” … . Here, the mother did not attempt to utilize any less drastic enforcement mechanism before moving to hold the father in contempt, and failed to demonstrate that resort to a less drastic enforcement mechanism would be ineffectual. Contrary to the mother’s contention, the fact that the child care, medical care, and extracurricular activity expenses she sought payment of were not for a sum certain did not prevent her from seeking to fix any arrears due for those expenses and enforcing the father’s payment obligations through less drastic means. Rhodes v Rhodes, 2016 NY Slip Op 01657, 2nd Dept 3-9-16

FAMILY LAW (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)/CHILD SUPPORT (MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED/CONTEMPT, CIVIL (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)

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VIOLATION OF CIVIL CONTEMPT ORDER PROPERLY ADMITTED IN GRAND LARCENY TRIAL TO SHOW LARCENOUS INTENT.

The Fourth Department, over a two-justice dissent, determined defendant’s violation of a civil contempt order was properly admitted in defendant’s grand larceny trial to show larcenous intent:

The … order directed defendant’s businesses to turn over all monies they had received as a result of defendant diverting credit card proceeds from Webster Hospitality Development LLC (WHD), a company in which defendant held majority ownership and which was in receivership, to undisclosed bank accounts maintained for defendant’s businesses. Contrary to defendant’s contention, the contempt order does not constitute a finding that defendant stole the money; rather, it demonstrates that defendant’s businesses failed to abide by the earlier order to return money to WHD and to provide certain documentation to the receiver. We thus conclude that the contempt order was properly admitted as relevant evidence of defendant’s intent to deprive WHD of the money by “withhold[ing] it or caus[ing] it to be withheld from [WHD] permanently” (§ 155.00 [3]; see People v Molineux, 168 NY 264, 293). Moreover, we note that “[l]arcenous intent . . . is rarely susceptible of proof by direct evidence, and must usually be inferred from the circumstances surrounding the defendant’s actions’ ” … . Here, the contempt order had significant probative value inasmuch as it showed that defendant’s conduct did not merely constitute poor financial management but, rather, that defendant, through his businesses, intended to deprive WHD of the diverted money permanently. The court therefore properly concluded that “the probative value of the evidence outweighed its prejudicial effect” … . People v Frumusa, 2015 NY Slip Op 09718, 4th Dept 12-31-15

CRIMINAL LAW (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/EVIDENCE (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/PRIOR CRIMES AND BAD ACTS (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)/MOLINEUX EVIDENCE  (VIOLATION OF CIVIL CONTEMPT ORDER RELEVANT TO INTENT IN GRAND LARCENY TRIAL)

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The Precise Terms of the Stipulation Were Not Demonstrated to Have Been Violated—Contempt Finding Improper

The Third Department determined the wife was improperly held in contempt re: a stipulation about refinancing the marital residence. The stipulation required that the wife make a good faith effort to refinance, but did not address the consequences of a failed attempt. By finding the wife in contempt for failing to refinance, the court improperly re-wrote the stipulation:

“To sustain a civil contempt finding based upon the violation of a court order, it must be established that there was a lawful court order in effect that clearly expressed an unequivocal mandate, that the person who allegedly violated the order had actual knowledge of its terms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party” … . Such violation, in turn, “must be established by clear and convincing evidence” … . “The decision of whether to hold in contempt a party who fails to comply with a court order rests within the court’s sound discretion” … .

Here, a review of the underlying order makes clear that Supreme Court found the wife to be in contempt of the parties’ April 2012 stipulation based upon her failure to refinance the marital residence “as agreed or otherwise take action to remove [the husband’s] name from the existing mortgage.” The parties’ stipulation, however, did not require the wife to successfully refinance the marital residence and remove the husband’s name from the existing mortgage; rather, the stipulation only imposed upon her the obligation to “make a good faith effort to obtain [such] financing . . . and remove [the husband’s] name from the mortgage within 45 days after receiving the [quitclaim deed].” Notably, the stipulation was silent as to the parties’ respective rights and obligations in the event that the wife attempted — but did not actually succeed — in obtaining such financing … and, by directing the sale of the marital residence in the event that the wife did not obtain refinancing within a specified time period, Supreme Court essentially revised the parties’ agreement to supply a solution to a problem that, on the face of the agreement, the parties themselves apparently did not contemplate. Howe v Howe, 2015 NY Slip Op 07709, 3rd Dept 10-22-15

 

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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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Failure to Advise Appellant of Right to Counsel In Contempt Proceedings Required Reversal

The Second Department reversed Supreme Court, which found appellant, Patricia Howlett, to be in civil and criminal contempt for the alleged failure to comply with a court order, because appellant was not informed of her right to counsel in the contempt proceedings:

The Supreme Court erred in holding Patricia Howlett in criminal and civil contempt. There is no evidence in the record which would establish that the court informed Howlett of her right to the assistance of counsel in connection with the contempt proceedings (see Judiciary Law § 770…). Howlett must be fully advised of her right to counsel, and her right to appointed counsel must be adequately explored, with counsel to be provided if appropriate … . Accordingly, we must reverse the order dated January 7, 2015, and remit the matter to the Supreme Court, Suffolk County, for a new hearing and a new determination of the motion to hold Howlett in contempt. Matter of Anthie B. (Howlett), 2015 NY Slip Op 07496, 2nd Dept 10-14-15

 

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