Criminal Contempt in New York
There are two degrees of criminal contempt.
Second-degree criminal contempt
You are guilty of second-degree criminal contempt, a class A misdemeanor if you do any of the following.
- Interrupt a court proceeding, or disrespect the court, by being disorderly or insolent, making noise or other disturbances; or
- Refuse to testify; or
- Publish a “false or grossly inaccurate report” of the court proceedings; or
- Intentionally disobey an order of the court; or
- Shout or display signs about the conduct of a trial, within 200 feet of the courthouse.
First-degree criminal contempt
You are guilty of first-degree criminal contempt, a class E felony if you violate an order of protection by placing the protected person in reasonable fear of physical injury, by:
- Displaying a deadly weapon as a threat; or
- Repeatedly following the person; or
- Calling or sending them letters/communications; or
- Making phone calls to them with no reason; or
- Touching, or threaten to touch, the person with the intent to harass, annoy, threatened or alarm; or
- Physically menacing the person; or
- After being convicted of contempt once, do it again within the next 5 years.
It is also first degree if you intentionally damage the property of someone who has an order of protection, in an amount exceeding $250, or refuses to testify before a grand jury proceeding.
Aggravated criminal contempt
A class D felony, to not just scare the person protected by the order protection, but to actually injure them. Or to commit first-degree criminal contempt twice within five years; or ever again, after having been convicted of aggravated criminal contempt.
Criminal contempt to the legislature
If you are subpoenaed as a witness, and refuse to attend or answer questions, or produce documents, it is a class A misdemeanor. The same applies to a temporary state commission.
Criminal contempt proceedings
Arise when someone interrupts a court proceeding by refusing to obey the court or violates an order of protection by threatening or harming the protected person. This often arises in domestic or family situations, where one party has an order of protection, and the other party nevertheless causes fear to the protected party.
- For example, a common scenario is a spouse returns to their apartment when an order of protection requires them to stay away. The other spouse says he can’t enter. Then charges rapidly accumulate criminal contempt first degree (violating a court order and causing reasonable fear), trespass (unlawful entry), burglary (the unlawful entry with intent to commit a crime), assault and forcible touching.
- Any situation where emotions run high can result in order of protection, violation of which is the underpinnings for a criminal contempt charge. An eviction prompted a tenant to harass and stalk his landlord, violating an order of protection and resulting in a conviction for criminal contempt.
What is the Family Court proceeding?
Family Court proceedings are outside of the criminal courts, but a temporary order of protection is often issued against the respondent upon the filing of a family offense petition, typically limiting contact with the petitioner to communication about child visitation or family emergency.
If the respondent sends e-mails to the petitioner raising other subjects, it is a violation of that order and can be referred to criminal court for prosecution, or the Family Court may put the respondent in jail for up to six months.
- For example, a protester at an Air Force Base received a temporary order of protection requiring her to stay away, which she violated, resulting in a six months sentence for second-degree criminal contempt.
- Another recurring situation is where a witness refuses to testify at trial. In People v. Sweat, a witness refused to testify, though he’d receive transactional immunity. When asked why, he said, “I don’t want to, so I don’t.”
The court cited him for contempt and ordered him taken into custody, then released him after the trial was over and the defendant, his brother, was acquitted. Afterward, the prosecution charged him with criminal contempt.
Under Judiciary Law and the Penal Law prohibit contempt.
The Judiciary Law
Requires that the criminal contempt is in the immediate view and presence of the court, intended to interrupt its proceedings or authority. It authorizes a fine not to exceed $1000, jail not more than 30 days, or both. As long as the offense was committed in front of the court, the judge may punish the defendant summarily – without a hearing or trial.
Under the Penal Law
A judge can put a person who refuses to testify immediately into jail, hold him until he either testifies or the trial is over, and then the person can be charged under the Penal Law.
With regard to orders of protection, since the offense of criminal contempt requires an intentional act by the defendant, it can always be argued there was no intent to violate an order of protection.
- For example, a wife with a protective order claimed she was threatened when the husband drove his vehicle in a menacing manner behind her, tailgating her and repeatedly swerving to each side of the victim’s car.
The husband said he didn’t intend to harass her. He was just trying to pass her, so he wouldn’t be charged with following, stalking, her vehicle. It was up to the jury to decide the husbands intent. It could be argued that, absent a signature acknowledging receipt of the order of protection, the defendant was unaware of its contents.
If the basis of the alleged violation is that the protected person was in fear, it can be argued it was not a reasonable fear. Proof that after the order of protection there had been numerous consensual interactions, for instance, can lead a jury to acquit on the grounds the victim did not feel threatened and was just picking and choosing selective when to raise it against him.
- For example, in one recent case, the spouse was initially charged with assault, criminal contempt in the second degree, and harassment when he returned home in violation of an order of protection directing him to stay away from home. The spouse told police she had been struck in the back and the left hand and felt fear for her physical safety.
Six weeks later though, the prosecution had to file superseding information to charge only a single count of criminal contempt in the second degree, because the spouse had changed her story considerably. The only remaining provable evidence was that he had violated the order of protection by coming home.
The court held that was not even valid since there was not adequate non-hearsay evidence that the place the encounter occurred was the home owned by the wife. The police observed her within the home but presented no non-hearsay evidence that it was her home, and since the order of protection required him to stay away from the “home,” not the person, the superseding indictment was dismissed. It was too late for the prosecution to do anything about it.
The evidence could be a recorded telephone conversation between the victim and the defendant, as long as it is properly authenticated
What are some of the essential and impactful cases?
Obviously, the many complexities and nuances involved in the charge make it essential to use astute legal counsel, when charged with criminal contempt. The use of contempt is to compel testimony before the legislature is an issue in current events nowadays.
- The ability of Democratic House committees to hold the Atty. Gen. William Barr in contempt of Congress for refusal to appear and testify concerning the Mueller Report is a current issue.
- In 2012, then Atty. Gen. Eric Holder was held in contempt by the Republican-led Congress for failure to produce documents relating to the Fast and Furious gun-tracking operation. The problem is that the criminal contempt charges then referred to the Justice Department. In Holder’s case, the Justice Department merely declined to prosecute their Atty. Gen.
- A referral of a criminal contempt charge by the House of Representatives to prosecute William Barr would likely end with the same result – the Justice Department would decline to prosecute.
- The New York State Atty. Gen. has used contempt charges to shut down organizations providing legal services to immigrants, in violation of orders prohibiting them from doing so.
The Judiciary Law also authorizes civil contempt for disobeying an order of the court. Civil contempt is often used to enforce an order of the court requiring the payment of money, like when a spouse is ordered to pay another spouse’s attorney’s fees. Willfulness is a required element for criminal contempt, but him for civil contempt.
What is Criminal contempt and Civil contempt
Criminal contempt and civil contempt go hand-in-hand, but they have different purposes. The purpose of criminal contempt is to punish, and the purpose of civil contempt is to compel compliance.
They have the same elements, knowing disobedience of a court order, but civil contempt can result in even more long-term incarceration than criminal contempt. In environmental litigation, both criminal and civil contempt are used together, as a method to compel cleanup of an environmentally contaminated site.
- In a recent case, it was initially found that a 310-acre farm had been used to dispose of solid waste, and an order issued permanently enjoining the defendants from dumping solid waste on the property, and further ordering them to remove the material previously dumped.
A few years later, the Department of Environmental Conservation investigator observed additional dumping of material, in direct violation of the order. The defendants were found in criminal and civil contempt of the prior court order and imposed a 30 day period of incarceration and $250 fine for the criminal contempt.
- For the civil contempt, the defendant was ordered to remove the material from the premises immediately. The court further ordered the defendant incarcerated until the court order was complied with. The defendant spent the next 572 days in jail, while his company attempted to remove all of the disputed material to purge his contempt.
There was a dispute as to what material needed to be removed. The trial court refused to release him, finding it was his burden to prove he removed all the material, and he failed to meet that burden. On appeal, the court concluded that there’d been a significant effort to purge the contempt, and further incarceration would serve no purpose.
The criminal contempt charge resulted in the incarceration of 30 days, but the civil contempt resulted in the defendant being in jail for 572 days
Inability to comply with a court order is a defense to both criminal and civil contempt.
- For instance, a father was ordered to post a $150,000 bond as security for the payment of this daughter’s private school tuition, as part of the judgment of divorce. The defendant offered evidence that he was unable to obtain the required bond. The trial court held him in contempt nevertheless, but the Appellate Division reversed, finding he made an adequate showing of his inability to comply with the court order.