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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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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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Where Jail Time Is Contemplated as Punishment for Disobeying an Order of Protection, the Standard of Proof for Willful Contempt is “Beyond a Reasonable Doubt”

The Third Department, in a full-fledged opinion by Justice Lahtinen, determined that the “beyond a reasonable doubt” standard applied in a contempt proceeding where jail time was imposed as a punishment for disobeying an order of protection.  The court held the proof met the standard, but sentenced the respondent to time-served (11 days):

Case law has not been consistent regarding the level of proof when considering an alleged willful violation of a protective order … . This inconsistency may be due in part to the statutory silence as to the quantum of proof (see Family Ct Act § 846-a [stating that the court must be satisfied by “competent proof”]), as well as the fact that, like other statutes implicating contempt, a Family Ct Act article 8 proceeding can involve civil contempt, criminal contempt or both. Criminal and civil contempt have different levels of proof as “criminal contempt must be proven beyond a reasonable doubt,” whereas “civil contempt . . . must be proven by clear and convincing evidence” … .

Where, as here, a person who has violated an order of protection is incarcerated as a punitive remedy for a definite period — with no avenue to shorten the term by acts that extinguish the contempt — then that aspect of the Family Ct Act article 8 proceeding “is one involving criminal contempt [and] [t]he standard of proof that must be met to establish that the individual willfully violated the court’s order is beyond a reasonable doubt” … . Matter of Stuart LL v Aimee KL, 2014 NY Slip Op 07222, 3rd Dept 10-23-14

 

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Elements of Civil and Criminal Contempt Explained

In affirming the denial of mother’s motion to hold father in civil and criminal contempt for failing to exercise his right to visitation, the Second Department explained the elements of each:

To find a party in civil contempt pursuant to Judiciary Law § 753, the applicant must demonstrate, 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'” (…see Judiciary Law § 753[A]). To satisfy the prejudice element, it is sufficient to allege and prove that the contemnor’s actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party … .

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 [*2]be rebutted with evidence of good cause for noncompliance'” … . Matter of Figueroa-Rolon v Torres, 2014 NY Slip Op 06584, 2nd Dept 10-1-14

 

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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

 

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