Calendar Date: September 5, 2017
A. Burgess, Indian Lake, for appellant.
P. Carriero, District Attorney, Malone (Jennifer M. Hollis of
counsel), for respondent.
Before: McCarthy, J.P., Garry, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Main Jr., J.), rendered
September 8, 2015 in Franklin County, convicting defendant
upon his plea of guilty of the crime of criminal contempt in
the second degree.
Franklin County Department of Social Services (hereinafter
DSS) commenced a Family Ct Act article 10 proceeding alleging
that defendant neglected two children. Family Court (Meyer,
J.) issued a temporary order of protection that, among other
things, directed defendant to stay away from the home of a
particular individual. Five days later, defendant was charged
with criminal contempt in the second degree (see
Penal Law § 215.50 ) after he was observed at that
residence. A few days later, he was charged with a second
count of that crime for again being at that residence. The
neglect proceeding and criminal charges were all transferred
to the Integrated Domestic Violence part of Supreme Court.
DSS filed a petition in the Family Ct Act article 10
proceeding alleging that defendant had violated the order of
protection. To resolve the petitions, defendant consented to
a finding of neglect and admitted that he willfully violated
the order of protection. Supreme Court (Main Jr., J.) imposed
a sentence of 60 days in jail, but delayed commencement of
the sentence and ordered periodic compliance conferences.
Defendant then moved to dismiss the criminal charges, arguing
that continued prosecution violated the Double Jeopardy
Clauses of the NY and U.S. Constitutions. After the court
denied his motion, defendant pleaded guilty to one count of
criminal contempt in the second degree, in satisfaction of
both charges, and was sentenced to 270 days in jail.
double jeopardy protections of the U.S. and NY Constitutions
"shield a defendant from multiple criminal punishments
arising from the same offense" (People v Sweat,
24 N.Y.3d 348, 356 ; see U.S. Const Amend V;
NY Const, art I, § 6; People v Wood, 95 N.Y.2d
509, 513 ). 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 (People v
Sweat, 24 N.Y.3d at 358; see Matter of Smith v
County Ct. of Essex County, 224 A.D.2d 89, 90-91 ,
lv denied 89 N.Y.2d 807');">89 N.Y.2d 807 ). 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 (People v Sweat,
24 N.Y.3d at 358; see Hicks v Feiock, 485 U.S. 624,
632 ; Matter of Smith v County Ct. of Essex
County, 224 A.D.2d at 92). 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"
(People v Sweat, 24 N.Y.3d at 357; see Hicks v
Feiock, 485 U.S. at 632; Matter of Smith v County
Ct. of Essex County, 224 A.D.2d at 92). Double jeopardy
precludes "a subsequent prosecution where a prior
contempt sentence serves a punitive rather than remedial
purpose" (People v Sweat, 24 N.Y.3d at 356;
see People v Wood, 95 N.Y.2d at 513 n 3; Matter
of Iceniar R. [Frankie R.], 73 A.D.3d 784, 785 ).
However, if the imposed sentence was remedial, double
jeopardy does not apply (see Matter of Pearlman v
Pearlman, 78 A.D.3d 711, 712-713 ; Matter of
Smith v County Ct. of Essex County, 224 A.D.2d at 92).
global resolution of the Family Ct Act article 10 neglect
petition and the violation petition, defendant consented to a
neglect finding and admitted facts establishing that he
violated the order of protection. As part of the disposition
of those matters, Supreme Court subjected defendant to
certain terms and conditions for one year. Additionally, the
court imposed the 60-day jail term, but did not require
defendant to report to jail until immediately after a
compliance conference, which was scheduled for a date three
months after the sentence was initially imposed. Apparently,
after the court held that conference and reviewed
defendant's compliance with the order of disposition and
ancillary orders, the court further postponed the
commencement of the 60-day term of incarceration. Indeed, the
parties have informed us that the reporting date for that
term has been repeatedly delayed, and defendant has not yet
been required to serve that sentence.
"the best practice would [have been] for [Supreme C]ourt
to state on the record that defendant may purge the contempt
through compliance with" the conditions of the
dispositional order (People v Sweat, 24 N.Y.3d at
360), the record facts indicate that the sentence for
violating the order of protection in the Family Ct Act
article 10 proceeding was intended "to coerce
[defendant's] compliance" with the dispositional and
related orders, making it civil in nature, and remedial
rather than punitive (id. at 358). Accordingly, the
constitutional double jeopardy protections did not preclude
defendant's subsequent criminal prosecution and sentence
for criminal contempt (see People v Sweat, 24 N.Y.3d
at 360-361; People v Daniels, 194 A.D.2d 420, 421
, lv denied 82 N.Y.2d 752');">82 N.Y.2d 752 ).
Clark, Mulvey and ...