Contempt – Page 7 – New York Appellate Digest

Civil Procedure, Contempt, Evidence, Family Law

Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt. The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt. In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … . El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

December 18, 2013

Contempt, Criminal Law, Evidence

Evidence Insufficient to Support Criminal Contempt in the First Degree—No Evidence of Intent to Harass (Two Dissenting Justices)

The Fourth Department, over a dissent by two justices, determined the evidence was legally insufficient to support criminal contempt in the first degree:

Even assuming, arguendo, that the evidence is legally sufficient to establish that defendant repeatedly made telephone calls to his ex-girlfriend, we agree with him that the evidence is legally insufficient to establish that he intended by those calls to harass, annoy, threaten or alarm her, with no purpose of legitimate communication (see § 215.51 [b] [iv];…. Rather, the only inference to be drawn from the evidence is that defendant made the calls with the intent to discuss issues of child support and visitation, not to harass, annoy, threaten or alarm his ex-girlfriend. We therefore modify the judgment accordingly. People v Webb, 619, 4th Dept 7-5-13

July 5, 2013

Contempt, Family Law

Civil Versus Criminal Contempt Explained in Context of Imposition of Fines or Monetary Penalties

In a divorce proceeding plaintiff sought a contempt finding and the imposition of monetary penalties or fines in connection with defendant’s failure to comply with a court order. The Second Department explained the principles underlying civil versus criminal contempt as follows:

“[U]nlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants”…. In the instant matter, the Supreme Court held the defendant in civil contempt. “Coercive penalties designed to modify the contemnor’s behavior, generally speaking, are civil in nature, while penalties meant to punish the contemnor for past acts of disobedience are criminal…. Thus, a fine “is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss . . . If a fine is not compensatory, it is civil only if the contemnor is given an opportunity to purge” … . Here, where the plaintiff failed to prove an actual loss, any penalty that punished the defendant for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication … . Ruesch v Ruesch, 2013 NY Slip Op 03655, 2nd Dept, 5-22-13

May 22, 2013

Contempt

Differences Between Civil and Criminal Contempt Explained

In sending the case back to Supreme Court for a hearing on the issue of whether defendant is guilty of civil and/or criminal contempt (re: the violation of a court order), the Second Department explained the differences between the two types of contempt as follows:

“Civil contempt (see Judiciary Law § 753) has as its aim the vindication of a private party to litigation'” …. In order to prevail on a motion to hold a party in contempt, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party’s rights … .”It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party …. “The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence” … .

“[U]nlike a civil contempt proceeding, [in a criminal contempt proceeding,] proof of guilt must be established beyond a reasonable doubt” …. “The purpose of criminal contempt (see Judiciary Law § 750) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed since the right of the private parties to the litigation is not the controlling factor'” … .However, “[a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance” … . Gomes v Gomes, 2013 NY Slip Op 03454, 2nd Dept, 5-15-13

May 15, 2013

Administrative Law, Civil Procedure, Contempt

Judicial Hearing Officer Does Not Have Power to Find Non-Witness Guilty of Contempt

The First Department noted that a judicial hearing officer (JHO) does not have the power to find any person in contempt except a witness before him:

While CPLR 4311 and 4317(a) give a referee, upon consent of the parties, the power to hear and determine all trial issues before the court, CPLR 4301 specifically precludes a referee and, thus, a JHO from “adjudg[ing] any person except a witness before him guilty of contempt.” While [the JHO] had the power to make factual findings concerning violation of his orders, he was without power to adjudge persons in contempt because neither contempt finding involved behavior occurring before him … . Hoffman v Helm Capital Group, Inc, 2013 NY Slip Op 02141, 603109/08, 9537A, 1st Dept 3-28-13

March 28, 2013

Contempt, Criminal Law

Court’s Failure to Inquire Further When It Was Not Clear Defendant’s Plea Was Knowing and Voluntary Required Vacation of Plea

In a criminal contempt (first degree) case, the Fourth Department determined defendant’s plea colloquy “negated essential elements of the crime to which he pleaded guilty inasmuch as his colloquy indicated that the order of protection was not issued pursuant to the statutory sections set forth in Penal Law [section] 215.51 (c), and that the predicate conviction was not based upon a violation of such an order of protection.” In light of the colloquy, County Court had a duty to inquire further to make sure the plea was knowing and voluntary. The plea was vacated. People v Coleman, 25, KA 09-01157, 4th Dept. 3-15-13

March 15, 2013