Double jeopardy in criminal contempt cases clarified

Criminal contempt charges may be brought against a Buffalo man who already served time in jail for refusing to testify against his brother in a criminal case.

The Court of Appeals has found double jeopardy will not bar a subsequent prosecution for contempt under Penal Law if a court subjects someone to conditional imprisonment in an attempt to compel testimony and does not otherwise adjudicate the defendant in criminal contempt or impose punishment that is criminal in nature.

If convicted of criminal contempt, Tyrone Sweat could face up to one year in jail for not testifying against his brother Michael in a 2012 trial in which Michael was acquitted of possessing stolen property.

Tyrone Sweat was required by law to testify because he had been granted transactional immunity after testifying against Michael before the grand jury, so he could not claim a Fifth Amendment privilege against testifying at trial.

“We’re still investigating his options for further relief,” said Rochester attorney David M. Abbatoy Jr., who represented Sweat on the appeal. “Although I’m disappointed with the outcome in the case, I think it was important for the court to further define and clarify New York’s contempt statute because there exists a substantial amount of uncertainty regarding how the statute should be applied and what procedures go along with that.”

Representing the people on the appeal was Nicholas T. Texido, an assistant district attorney in the Erie County District Attorney’s Office who referred questions to District Attorney Frank A. Sedita III, who could not be reached for comment.

Tyrone Sweat and his brother, according to court documents, were charged with possession of stolen property in 2011 in Buffalo. When Tyrone refused to testify at his brother’s trial in Erie County Court, he was told he had no Fifth Amendment right to remain silent.

The prosecutor asked that Sweat be cited for civil contempt and said he would also be charged with criminal contempt.

Sweat was jailed, still refused to testify the next day and was returned to jail. He was released when the trial ended, but charged three weeks later with two misdemeanor counts of criminal contempt.

The charges were dismissed in Buffalo City Court after a judge found they were barred by double jeopardy.

The district attorney’s office appealed to County Court which affirmed, prompting the latest appeal to the state Court of Appeals. Arguments were heard Sept. 16.

Texido argued Sweat was neither tried, nor prosecuted, but “temporarily held in contempt” to try to get him to testify, so double jeopardy did not apply.

Abbatoy argued the court had exercised its authority under criminal provisions of the Judiciary Law to hold Sweat in contempt and that the later charges, brought under Penal Law Section 215.50 were 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,” Judge Jenny Rivera wrote in the 20-page unanimous decision in People v. Sweat (2014 NY Slip Op 07292), handed down Oct. 28. “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.”

The court rejected Sweat’s claim that contempt is criminal in nature by the mere fact of a court’s invocation of language found in the law’s criminal contempt provisions, even if the court indicates it invoked contempt for remedial reasons, such as compelling testimony.

“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,” Judge Rivera wrote. “The appeal illustrates the confusion attendant to the proper legal characterization of a contempt determination under our Judiciary Law.”

She noted the confusion is further compounded when the defendant is also prosecuted for criminal contempt under Penal Law, with the parties and lower courts trying to determine if the original contempt was civil or criminal.

The Judiciary Law provides a person held in contempt may also be criminally prosecuted. The language of Penal Law Section 215.50, under which Sweat was charged, is similar. Both make “disorderly, contemptuous or insolent behavior, committed during the sitting of a court …” unlawful.

Penal Law also addresses disobedience or resistance to the lawful process or other mandate of a court and says adjudication of criminal contempt under Judiciary Law serves as no bar to prosecution for criminal contempt under Penal Law Section 215.50, based on the same conduct.

“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,” Judge Rivera wrote.

She noted double jeopardy protects a defendant from multiple criminal punishments arising from the same offense and has a particular application to contempt matters, barring a subsequent prosecution where a prior contempt sentence serves a punitive rather than remedial purpose.

The test for determining if contempt constitutes punishment in a constitutional sense is outlined in Shillitani v. United States, 384 U.S. 364, a 1966 decision where the high court found a defendant held in contempt for the remedial purpose of compelling compliance, the imprisonment continues until the person in contempt agrees to comply or can no longer do so.

New York’s Judiciary Law, Judge Rivera notes, was addressed by the Supreme Court in 1972 in Colombo v. New York, 405 U.S. 9, in which it made clear it is the nature of the contempt that matters. It found double jeopardy did exist in a later prosecution in which the defendant had originally been sentenced to a definite term in jail and ordered to pay a fine, finding the original contempt decision was punitive and not remedial; that it was designed to inflict a sanction for past conduct, rather than compel future testimony.

“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,” Judge Rivera wrote, citing Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624 [1988].

“Under 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 Judicial Law,” the decision states.

Judge Rivera noted the trial court judge said the “character and purpose” of Sweat’s confinement during his brother’s trial was remedial and that the court continued to ask him and his attorney if he was willing to testify, giving him additional opportunities to comply with the law, even delaying his brother’s trial.

“County Court never referred to the contempt as ‘criminal,’ nor to the confinement as ‘punishment,’” she wrote. “Clearly, whether, when and how to punish was unresolved and open to the court’s further determination.”

The Court of Appeals concludes best practice would be a for a court invoking criminal contempt power to state on the record the defendant may purge the contempt through compliance with the law.

Criminal contempt under Penal Law Section 215.50 is a Class A misdemeanor, punishable by up to a year in jail.

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