Ferrara v. Hynes
| Decision Date | 08 May 1978 |
| Citation | 404 N.Y.S.2d 674,63 A.D.2d 675 |
| Parties | In the Matter of Frank FERRARA, Appellant, v. Charles J. HYNES, Deputy Attorney-General, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Wishod & Fisch, New York City (Morris Cohen, Richard C. Agins and Joseph H. Wishod, New York City, of counsel), for appellant.
Charles J. Hynes, Deputy Atty. Gen., Hauppauge (Steven D. Usdin, Hauppauge, of counsel), for respondent.
Before TITONE, J. P., and SUOZZI, SHAPIRO and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeal by petitioner from an order of the County Court, Nassau County, dated October 18, 1977, which adjudged him guilty of contempt of court for failure to appear before a Grand Jury and sentenced him to 20 days' imprisonment.
Order reversed, on the law and the facts, without costs or disbursements, and adjudication vacated.
In our opinion, the County Court was correct in holding appellant in contempt on September 30, 1977 for his failure to comply with its direction of September 26, 1977 to appear and testify before the Grand Jury later that day pursuant to a validly issued subpoena. However, the law is settled that a contemnor will generally be allowed to purge the contempt by performing the act required, or by undoing or reversing the acts constituting the contempt (see People v. Leone, 44 N.Y.2d ---, --- N.Y.S.2d ---, --- N.E.2d ---- (May 2, 1978); People ex rel. Valenti v. McCloskey, 6 N.Y.2d 390, 399, 189 N.Y.S.2d 898, 904, 160 N.E.2d 647, 651; 17 C.J.S. Contempt § 106).
In the instant case, the record reveals that appellant had testified before the same Grand Jury on two prior occasions with respect to the subject investigation. Although appellant failed to appear before the Grand Jury on September 26th as directed, he did advise the court that he was too emotionally upset to testify on that day and that if he had more time to compose himself, he would return at a later date. Furthermore, his attorney unsuccessfully moved to adjourn the case until October 4th so that he could discuss the problems with his client under less oppressive conditions.
On September 30, 1977, at the conclusion of the contempt hearing and before the County Court's adjudication holding appellant in contempt and directing that he appear before the Grand Jury on October 17th, appellant's counsel stated that his client was then able to go before the Grand Jury, although he had been unable to do so on September 26th for physical reasons. Moreover, on...
To continue reading
Request your trial
-
Carver Fed. Sav. Bank v. Shaker Gardens, Inc.
...787 N.Y.S.2d 470 [2004] ; Matter of Silverstein v. Aldrich , 76 A.D.2d 911, 912, 429 N.Y.S.2d 41 [1980] ; Matter of Ferrara v. Hynes, 63 A.D.2d 675, 675, 404 N.Y.S.2d 674 [1978] ). Here, defendant did ultimately appear for a deposition and testify as ordered, albeit belatedly. The question ......
-
Town of Southold v. Kelly
... ... vMcKanic, 160 A.D.2d 870, 554 N.Y.S.2d 303[2d Dept ... 1990]; Silverstein v Aldrich, 76 A.D.2d 911,76 ... A.D.2d 911 [2d Dept 1980]; Ferrara v Hynes, 63 ... ...
-
Department of Housing Preservation and Development of City of New York v. Park Properties Development Associates
...318, 405 N.Y.S.2d 642, 376 N.E.2d 1287. Respondents are further supported in their position by the Court in Matter of Ferrara v. Hynes, 63 A.D.2d 675, 404 N.Y.S.2d 674 (2d Dept.1978), where the Court ratified the correctness of holding the appellant in contempt for his failure to comply wit......
-
Kuriansky v. Ali
...subpoenas (see, Matter of January 1979 Grand Jury of Albany Supreme Ct. v. Doe, 84 A.D.2d 588, 444 N.Y.S.2d 201; Matter of Ferrara v. Hynes, 63 A.D.2d 675, 404 N.Y.S.2d 674). Turning to the issue raised by the Deputy Attorney-General's appeal, we find that Asad Ali was adequately apprised o......