The People v. Tyrone Sweat

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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 159

The People &c.,

Appellant,

v.

Tyrone Sweat,

Respondent.

Nicholas T. Texido, for appellant.

David M. Abbatoy, for respondent.

RIVERA, J.:

The People appeal from an order of the Erie County

Court dismissing, on double jeopardy grounds, an information

charging defendant Tyrone Sweat with two counts of Criminal

Contempt in the Second Degree (Penal Law § 215.50 [4]). We hold

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that where a court subjects a defendant to conditional

imprisonment in an attempt to compel defendant to testify, and

does not otherwise adjudicate defendant to be in criminal

contempt or impose punishment that is criminal in nature, double

jeopardy will not bar a subsequent prosecution for contempt under

the Penal Law. Accordingly, we reverse.

I.

On the morning of February 23, 2012, defendant refused

to testify at the trial of his brother, Michael Sweat, in Erie

County Court. Defendant had previously testified at a grand jury

proceeding against his brother and received transactional

immunity. Thus, defendant could claim no Fifth Amendment

privilege against testifying at trial. When the court asked

defendant to explain the grounds for his refusal, he replied "I

don't want to, so I don't." The court explained transactional

immunity and informed defendant that the law required him to

testify, but defendant continued to refuse.

The court also warned defendant that if he refused to

testify the People would likely seek contempt, to which the

People stated "[w]e'll ask that [defendant] be cited for civil

contempt and confined until he agrees to testify or until the end

of the proceeding, and also we'll charge him with criminal

contempt for refusing to be sworn and testify." The court then

inquired of defendant if he understood the consequences of his

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actions and defendant indicated that he did. The court then

cited defendant for contempt and ordered him to be taken into

custody. Referring to the People's future actions against

defendant, the court stated that it "[m]ight be a good idea to

give [defendant] a lawyer if you're going to charge him with a

criminal charge," to which the People agreed.

Later that same day, during the court's afternoon

session, assigned counsel appeared on behalf of defendant and

advised the court that he had discussed the matter with

defendant, and that defendant still refused to testify. The court

called defendant to the courtroom, explained to defendant once

more that he had immunity and was obliged to speak, and again

asked him if he refused to do so. Defendant reiterated that he

was unwilling to testify. The court pressed the issue and asked

if defendant had any explanation for his refusal to testify.

Defendant stated he had nothing to say and just did not want to

testify.

The court then declared:

"I find you're in contempt in my immediate

view and presence for engaging in conduct

which has obstructed and threatened to

obstruct these proceedings and impair its

authority -- my authority to preside over

these proceedings and, therefore, I will

issue a mandated commitment. And he'll be

taken into custody. . . [D]epending on how

long this goes and where we are from here and

whether or not the People bring any charge of

criminal contempt, we'll proceed further with

this matter within the next day or so."

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The court immediately inquired about the criminal

charges, and the People informed the court that they intended to

"file the criminal charges before the end of the trial." The

court remarked that "obviously, you don't stay in jail forever on

a contempt proceeding." The court informed defendant that he was

going to be confined until the proceedings were completed, when

there would be a "determination at that point as to what

punishment, if any, [would] be meted out . . ." The court also

advised defendant's counsel, in defendant's presence, that if

defendant needed to speak with counsel, and counsel needed to

communicate with the court, that counsel "should feel free to do

so."

The next day, before continuing with the trial of

defendant's brother, the court confirmed with counsel that

defendant still refused to testify. Counsel so confirmed, and the

People requested that the court produce defendant to establish

his refusal on the record. Upon defendant's return to the

courtroom, the court again asked defendant if anything had

changed since the previous day and whether he was still refusing

to testify. After defendant confirmed he would not testify, he

was taken back into custody.

That same day, Michael Sweat's trial ended in an

acquittal. Upon hearing from the People that no criminal charges

had been filed against defendant, the court immediately executed

an order releasing defendant from custody.

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Less than a month later the People charged defendant by

information in Buffalo City Court with two counts of criminal

contempt in the second degree (Penal Law § 215.50 [4]), stemming

from his refusal to testify at his brother's trial. As relevant

to this appeal, defendant moved, inter alia, to dismiss on double

jeopardy grounds.

City Court granted the motion and dismissed the

charges, finding County Court's prior contempt determination to

be criminal in nature as having been made during the course of a

criminal trial and necessarily imposed under the Judiciary Law's

criminal contempt provision. The contempt adjudication and the

charges under the Penal Law having been based on the same

conduct, City Court determined the charges were therefore barred

by double jeopardy.

Erie County Court, then sitting as the intermediate

appellate court, affirmed. County Court described the contempt

proceedings as a "hybrid combination of both criminal and civil

characteristics," but found that the proceedings were criminal in

nature because the court ordered defendant's confinement, and in

so doing relied on language found in the criminal contempt

provisions of the Judiciary Law (see Judiciary Law § 750 [A]

[1]).

A Judge of this Court granted the People leave to

appeal (21 NY3d 1010 [2013]). We now reverse.

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II.

The People argue that defendant was neither tried nor

prosecuted, but instead was "temporarily held in contempt" for

the remedial purpose of coercing defendant to testify in court.

Therefore, the court's summary contempt proceeding does not

constitute punishment for double jeopardy purposes, or bar

prosecution for criminal contempt under the Penal Law.

Defendant responds that the court exercised its

authority under the criminal provisions of the Judiciary Law to

hold him in criminal contempt. He further argues that his

confinement, pursuant to the court issued mandate of commitment,

constitutes punishment for obstructing the court's proceedings

and impairing its authority. Therefore, the contempt is criminal

in nature and his prosecution under Penal Law § 215.50 is barred

by double jeopardy.

Essentially the People and defendant dispute whether

the purpose for the court's contempt finding and defendant's

confinement was to punish defendant for his refusal to testify at

his brother's trial. While the People base their argument on the

character of the contempt and its intent to compel a defendant's

obedience to the law, the defendant relies on a narrow

interpretation of the Judiciary Law which ignores the purpose of

the contempt. Under defendant's approach, contempt is criminal

in nature by the mere fact of a court's invocation of language

found in the law's criminal contempt provisions, regardless of

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actions by the court indicating the contempt was intended to be

remedial. We reject the defendant's invitation to read the

statute in a way that undermines settled constitutional

principles, and agree with the People that defendant's

confinement did not constitute punishment for double jeopardy

purposes.

III.

This appeal illustrates the confusion attendant to the

proper legal characterization of a contempt determination under

our Judiciary Law. That confusion is compounded when, as in the

case before us, a defendant is also prosecuted for criminal

contempt under the Penal Law. The opinions of the City Court and

County Court, as well as the arguments propounded by the People

and defendant, illustrate the challenges faced by those seeking

to bring coherence to this area of the law. The courts and the

parties here struggled with whether the contempt determination

was more appropriately labeled "civil" or "criminal." As we

discuss below, for purposes of a double jeopardy analysis, labels

are not dispositive; what matters is the "character and purpose"

of the actions of the court imposing contempt. As explained by

the United States Supreme Court, "[t]he test may be stated as:

what does the court primarily seek to accomplish by imposing

sentence?" (Shillitani v United States, 384 US 364, 370 [1966]).

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We begin our discussion with a brief description of the

law, specifically the relevant contempt provisions of the

Judiciary and Penal Laws, and select judicial decisions,

including decisions from the Supreme Court of the United States,

explicating the proper approach to constitutional limitations on

contempt proceedings.

A. Judiciary Law Article 19

Article 19 of the Judiciary Law authorizes a court to

punish a person for "criminal" or "civil" contempt, and permits

adjudication and sentence by way of summary proceeding. The court

determines which provisions of the Judiciary Law apply and which

to invoke based on the contemnor's conduct and the requirements

of the statute.

Section 750, titled "Power of courts to punish for

criminal contempts," limits a court's power to punish for

criminal contempt a person who commits any of the specifically

enumerated actions set forth in this provision "and no others."

Under this section a court may hold a person in criminal contempt

for "[d]isorderly, contemptuous, or insolent behavior, committed

during its sitting, in its immediate view and presence, and

directly tending to interrupt its proceedings, or to impair the

respect due to its authority" (§ 750 [1]); "[b]reach of the

peace, noise, or other disturbance, directly tending to interrupt

its proceedings" (§ 750 [2]); "[w]ilful disobedience to its

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lawful mandate" (§ 750 [3]); "[R]esistance wilfully offered to

its lawful mandate" (§ 750 [4]); "[c]ontumacious and unlawful

refusal to be sworn as a witness; or, after being sworn, to

answer any legal and proper interrogatory" (§ 760 [5]);

"[p]ublication of a false, or grossly inaccurate report of its

proceedings [except] a court cannot punish as a contempt, the

publication of a true, full, and fair report of a trial,

argument, decision, or other proceeding therein" (§ 750 [6]); or

"[w]ilful failure to obey any mandate, process or notice issued

pursuant to articles sixteen, seventeen, eighteen, eighteen-a or

eighteen-b of the judiciary law . . . or subjection of an

employee to discharge or penalty on account of his absence from

employment by reason of jury or subpoenaed witness service . . .

" (§ 750 [7]).

By way of punishment, Section 751 authorizes a fine not

exceeding $1,000, incarceration not more than 30 days, or both.

Where a person is committed for contempt pursuant to Section 751,

the court must issue a mandate of commitment, setting forth the

"particular circumstances of [the contemnor's] offense" as

required under Section 752.

Section 753, titled "Power of courts to punish for

civil contempts," allows a court "power to punish, by fine and

imprisonment, or either, a neglect or violation of duty, or other

misconduct, by which a right or remedy of a party to a civil

action or special proceeding, pending in the court may be

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defeated, impaired, impeded, or prejudiced . . . " in instances

where, e.g., an individual disobeys a lawful mandate of the court

(§ 753 [1]), non-payment on a sum of money adjudged by the court

to be paid (§ 753 [3]), or where an individual refuses a court's

lawful mandate to testify (§ 753 [5]).1

The Judiciary Law permits a court to punish for

"criminal" or "civil" contempt in a summary proceeding (see

Judiciary Law §§ 754, 755). Section 755 provides that "[w]here

the offense is committed in the immediate view and presence of

the court, or of the judge or referee, upon a trial or hearing,

it may be punished summarily." Under this section, the judge or

referee must issue an order "stating the facts which constitute

the offense and which bring the case within the provisions of

this section, and plainly and specifically prescribing the

punishment to be inflicted therefor [sic]."

The Judiciary Law provides that a person held in

contempt may also be criminally prosecuted and the prior contempt

may be considered for sentencing purposes. Thus, "[a] person,

punished as prescribed in this article, may, notwithstanding, be

indicted for the same misconduct, if it is an indictable offense;

1

Further, the Judiciary Law provides a unique remedy for

cases arising out of labor disputes. Section 753-a, applies

specifically in cases "aris[ing] out of any failure or refusal to

obey any mandate of a court contained in or incidental to an

injunction order granted by such court in any case involving or

growing out of a labor dispute" and provides that a court cannot

punish for contempt except after "a trial by jury to which the

defendant shall be entitled as a matter of right."

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but the court, before which he is convicted, must, in forming its

sentence, take into consideration the previous punishment"

(Judiciary Law § 776).

B. Criminal Contempt Under the Penal Law

Contempt may also be a crime punishable under New

York's Penal Law (see generally Penal Law §§ 215.50 [second

degree], 215.51 [first degree] and 215.52 [aggravated]).2 The

language of Penal Law § 215.50, the section under which defendant

was charged, closely resembles its Judiciary Law counterpart,

making unlawful, inter alia, "[d]isorderly, contemptuous, or

insolent behavior, committed during the sitting of a court . . .

(215.50 [1]); "[i]ntentional disobedience or resistance to the

lawful process or other mandate of a court" (§ 215.50 [3]); or

"[c]ontumacious and unlawful refusal to be sworn as a witness in

any court proceeding or, after being sworn, to answer any legal

and proper interrogatory" (§ 215.50 [4]).

As with Judiciary Law section 776, the Penal Law

similarly states that an adjudication of criminal contempt under

the Judiciary Law serves as no bar to prosecution for criminal

contempt. Penal Law section 215.54 provides:

"Adjudication for criminal contempt under

2

Penal Law § 215.51 criminalizes, in addition to what is

proscribed by § 215.50, the intentional disobedience of a court

imposed order of protection by intimidation, harassment or the

use or threat of violence (§ 215.51 [b] et seq.). Penal Law §

215.52 makes the repeated contemnor subject to a class D felony.

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subdivision A of section seven hundred fifty

of the judiciary law shall not bar a

prosecution for the crime of criminal

contempt under section 215.50 based upon the

same conduct but, upon conviction thereunder,

the court, in sentencing the defendant shall

take the previous punishment into

consideration"

(Penal Law § 215.54).

Thus, the Legislature has made clear its intent, as a

pure statutory matter, that a person may be subject to punishment

pursuant to a finding of contempt under the Judiciary Law, as

well as a criminal prosecution under the Penal law.

C. Judicial Decisions

Constitutional and statutory prohibitions barring

double jeopardy shield a defendant from multiple criminal

punishments arising from the same offense (see US Const Amend. V

["nor shall any person be subject for the same offence to be

twice put in jeopardy . . .]; NY Const art. I, § 6 ["No person

shall be subject to be twice put in jeopardy for the same

offense"]; see also CPL 40.20 ["A person may not be twice

prosecuted for the same offense"]; People v Wood, 95 NY2d 509,

513 [2000] [imposition of multiple criminal punishments for the

same offense is barred by the Double Jeopardy Clause]). Double

jeopardy has a particular application to contempt matters and

bars a subsequent prosecution where a prior contempt sentence

serves a punitive rather than remedial purpose (see People v

Colombo (405 US 9 [1972]).

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The test for determining whether contempt is of the

type that constitutes punishment in a constitutional sense is

well articulated in Shillitani, and its companion case, Pappadio

v United States. There, defendants were each incarcerated for

their respective refusals to answer certain questions before the

same grand jury (Shillitani, 384 US at 365-66). Both defendants

were found guilty of criminal contempt, and each sentenced to two

years imprisonment, subject to a "purge clause" that permitted

defendants' release if they answered the questions before the end

of the their respective sentences (id.). The United States

Supreme Court rejected defendants' claims that they were confined

without the benefit of indictment or jury trial, holding that the

sentences were conditional, and therefore the actions constituted

civil contempt proceedings not subject to the constitutional

safeguards of indictment or jury trial (id. at 372).

Essential to the court's decision was its determination

that despite its obvious punitive aspects, imprisonment serves a

remedial purpose "if the court conditions release upon the

contemnor's willingness to testify" (id. at 370, citing Nye v

United States, 313 US 33, 42-43 [1941]). For, "'[i]t is not the

fact of punishment, but rather its character and purpose, that

often serve to distinguish civil from criminal contempt" (id. at

369, quoting Gompers v Buck's Stove & Range Co., 221 US 418, 441

[1911]). Where a defendant is held in contempt for the remedial

purpose of compelling compliance, imprisonment continues until

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such time as the contemnor acquiesces or is no longer able to do

so (see Shillitani, 384 US at 371). 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" (id. at 368).

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" (Gompers, 221 US at 442-43).

The court reaffirmed these principles in Hicks on

Behalf of Feiock v Feiock (485 US 624, 632 [1988]). There,

defendant challenged on due process grounds his contempt

adjudication and subsequent incarceration for failure to make

child support payments (id. at 628). Ultimately, the court found

the record too underdeveloped and remanded (id. at 640-41).

However, the court restated the legal rules applicable to

determining the character of contempt and noted that "[i]f the

relief provided is a sentence of imprisonment, it is remedial if

'the defendant stands committed unless and until he performs the

affirmative act required by the court's order,' and is punitive

if 'the sentence is limited to imprisonment for a definite

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period'" (id. at 632, quoting Gompers, 221 US at 440).

Addressing a double jeopardy challenge to our

Judiciary Law, the United States Supreme Court made clear that it

is the nature of the contempt that matters. In Colombo, the court

found defendant in contempt for his refusal to testify before a

grand jury after being granted immunity. The court sentenced the

defendant to 30 days imprisonment and a $250 fine. When

defendant's appellate challenge proved fruitless, he offered to

testify. When his offer was refused, defendant paid his fine and

served his sentence. Subsequently, the People indicted the

defendant under the Penal Law. Defendant unsuccessfully

challenged his indictment on double jeopardy grounds, and this

Court affirmed (People v Colombo, 25 NY2d 641 [1969]).

The Supreme Court reversed and concluded that the trial

court's determination constituted a judgment for "criminal

contempt" within the meaning of the Double Jeopardy Clause

because "the petitioner was sentenced to a definite term in jail

and ordered to pay a fine, and neither the prosecutor nor the

trial court considered his offer to testify as sufficient to

foreclose execution of the sentence" (Colombo, 405 US at 10-11).

Thus, the contempt decision was not remedial but punitive,

designed to inflict a sanction for past conduct rather than to

compel the petitioner's testimony in the future.3

3

The defendant seeks to distinguish federal precedent by

arguing that criminal contempt may be purged in New York, relying

on People v Leone (44 NY2d 315 [1978] [per curiam]). However,

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It is, thus, well settled that the character and

purpose are the central inquiry in deciding whether double

jeopardy bars a criminal prosecution based on actions that

resulted in a previous contempt adjudication and sentence.

Whether a state court labels the contempt as "criminal" or

"civil" is of no moment. As the Supreme Court stated in Hicks,

"the labels affixed either to the proceeding or to the relief

imposed under state law are not controlling" (Hicks, 485 US at

631).

In Wood we applied the teaching of Hicks, noting that

we rely on the court's purpose, not descriptive labels, when

determining the nature of contempt for double jeopardy purposes

(Wood,95 NY2d at 513 n 3). Where such purpose is to coerce

compliance rather than a definite term of imprisonment and

punishment, the contempt is not punitive in nature (id.).

Statements in our prior cases that under the Judiciary Law civil

contempt is intended to be remedial, while criminal contempt is

intended to punish, are not at odds with an analysis that focuses

the Court in Leone specifically left open that very question.

Moreover, we do not see how this argument furthers the

defendant's position. The People argue that defendant could have

sought release from custody by testifying, and thus the contempt

was remedial and not punishment of the type that bars his future

criminal prosecution. Defendant's contention that criminal

contempt may be purged in New York, thus relieving defendant of

the court's contempt determination, appears to support the

People's argument that the purpose of the contempt was to coerce

the defendant into testifying at his brother's trial, and

supports the People's case for reversal.

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on the actual character and purpose of the contempt. These cases

must be understood to address the actual adjudication and

imposition of contempt, apart from the labels attached to those

actions (see e.g. State v Unique Ideas, Inc., 44 NY2d 345 [1978];

Dept. of Envtl. Protection of City of New York v Dept. of Envtl.

Conservation of State of N.Y., 70 NY2d 233 [1987]).

IV.

Upon the record before us, we conclude that County

Court did not summarily adjudicate and impose a punitive sentence

upon defendant for criminal contempt under the Judiciary Law.

County Court's statements and conduct, as well as its lack of

compliance with applicable sections of the law, persuade us that

it did not impose punishment for criminal contempt under any

statutory authority to do so.

The court's statements to defendant, his counsel and

the People establish that "the character and purpose" of the

contempt determination, and defendant's confinement during the

course of his brother's criminal trial, was remedial. Most

significantly, even after holding defendant in contempt, the

court continued to inquire of defendant and his counsel whether

defendant was willing to testify, indicating that defendant still

had an opportunity to comply with the law. For example, the

morning immediately following the court's declaration of

contempt, the court delayed the brother's criminal trial to

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inquire of counsel and defendant whether defendant would testify.

The only conclusion to be drawn from the court's question to

defendant as to whether anything had "changed since yesterday,"

is that it held out the possibility that something had changed,

and that defendant's confinement persuaded him to testify. As

"conditional imprisonment" is "based entirely upon the

contemnor's continued defiance," the defendant held the keys to

his release (see Shillitani, 384 US at 370).

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.

The uncertainty of the duration of the underlying

summary contempt proceeding forecloses a finding that defendant's

confinement constitutes, as a matter of law, a sentence of a

definite term of imprisonment. We reject the approach taken by

the intermediate appellate court that found the earlier contempt

proceeding "never formally pronounced sentence," but nevertheless

treated defendant's release at the end of his brother's criminal

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trial as "tantamount to a sentence of time served." That

interpretation is at odds with the language of the Judiciary Law,

which states that the order must set forth the punishment

"plainly and specifically" (Judiciary Law § 755). To find a

punitive sentence under section 755 where none was imposed we

would also have to ignore the record, which indicates that the

judge did not order defendant's confinement as punish for

defendant's contempt.

Compliance with this statutory requirement is

indispensable and provides a reviewing court with the basis for

the finding and sentence of contempt (see e.g. Lynch v Derounian,

41 AD2d 740 [2d Dept 1973]["A written order is indispensable to a

review of a contempt citation"]; Loeber v Teresi, 256 AD2d 747,

749 [3d Dept 1998] ["The mandate that a contempt order be reduced

to writing is an indispensable requirement"]; Eaton v Eaton, 46

AD3d 1432 [4th Dept 2007] [same]). The absence of compliance with

this central requirement of section 755 supports our conclusion

that County Court did not summarily adjudicate and punitively

sentence defendant in criminal contempt under the Judiciary Law.

County Court never referred to the contempt as

"criminal," nor to the confinement as "punishment." Quite the

opposite. Reacting to the People's indication that they would

file criminal charges before the end of the trial, County Court

stated that it would hold defendant until the criminal trial was

completed, "and then [] make a determination at that point as to

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what punishment, if any, [would] be meted out . . ." Clearly,

whether, when and how to punish was unresolved and open to the

court's future determination.

V.

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. Accordingly, the order of the

Erie County Court should be reversed and the information

reinstated.

* * * * * * * * * * * * * * * * *

Order reversed and information reinstated. Opinion by Judge

Rivera. Chief Judge Lippman and Judges Graffeo, Read, Smith,

Pigott and Abdus-Salaam concur.

Decided October 28, 2014

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