Matter of Orange County v. Rodriguez

• Decision Date: 14 May 2001
• Citation: 283 AD2d 494,724 N.Y.S.2d 477
• Parties: (A.D. 2 Dept. 2001) In the Matter of County of Orange, respondent, v Robert Rodriguez, appellant. 2000-02388 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 477

724 N.Y.S.2d 477 (A.D. 2 Dept. 2001)

In the Matter of County of Orange, respondent, v Robert Rodriguez, appellant.

2000-02388

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

May 14, 2001

Michael Rosen, New York, N.Y. (Jean Marie Graziano of counsel), for appellant.

Richard B. Golden, County Attorney, Goshen, N.Y. (Susan I. Wegner of counsel), for respondent.

GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, JJ.

In a proceeding pursuant to CPLR 5104 and Judiciary Law § 753 to punish Robert Rodriguez for civil contempt, the appeal, as limited by the appellant's brief, is from so much of a judgment of the County Court, Orange County (DeRosa, J.), dated January 20, 2000, as, inter alia, adjudicated Robert Rodriguez to be in civil contempt for failing to comply with a prior order of the same court, dated January 25, 1999, requiring him to surrender certain weapons to the Orange County Sheriff, and directed his incarceration.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the County Court, Orange County, for further proceedings on the petition.

The appellant is the holder of a pistol permit pursuant to which he was licensed to own several weapons. He is a suspect in a highly-publicized murder investigation in New York City. On or about January 4, 1999, the appellant was arrested by the New York City Police Department and charged with several felonies unrelated to the murder investigation in which he is considered a suspect. He has been incarcerated since that time.

Based on his arrest, the County Court, Orange County, issued an order dated January 25, 1999 (hereinafter the order of suspension), that, inter alia, suspended the appellant's pistol permit and directed him to surrender his licensed weapons to the Orange County Sheriff's Department. Upon the appellant's failure to comply with the order of suspension, the petitioner, County of Orange, commenced the instant proceeding pursuant to CPLR 5104 and Judiciary Law § 753 to punish the appellant for civil contempt. On December 9 1999, the County Court, Orange County, conducted a hearing on the petition, following which it, in effect, granted the petition and adjudicated the appellant to be in contempt of court. We reverse and remit the matter to the County Court, Orange County, for further proceedings consistent herewith.

"In order to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged violated a clear and unequivocal court order, thereby prejudicing a right of another party to the litigation" (Goldsmith v Goldsmith, 261 A.D.2d 576, 577; see, Judiciary Law § 753[A][3]; McCain v Dinkins, 84 N.Y.2d 216; Burstin Investors v K.N. Investors, 266 A.D.2d 251, 253). However, it is well settled that a party may not be held in contempt based upon his or her good faith invocation of the Fifth Amendment privilege against self-incrimination in response to questions posed at a hearing (see, United States v Rylander, 460 U.S.752, 760; United States v Edgerton, 734 F.2d 913; Federal Deposit Ins. Corp. v Salesman Unlimited Agency Corp., 101 A.D.2d 876). In the instant case, comments by the County Court demonstrate that it did, in fact, base its finding of contempt solely upon the appellant's good faith invocation of his Fifth Amendment privilege in response to questions posed at the contempt hearing...