People ex rel. Constantino v. Lorey, 98918.

• Decision Date: 27 April 2006
• Docket Number: 98918.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANGELIC CONSTANTINO, Respondent, v. THOMAS J. LOREY, as Fulton County Sheriff and Administrator of the Fulton County Jail, et al., Appellants, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

28 A.D.3d 1041

815 N.Y.S.2d 292

2006 NY Slip Op 03141

THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANGELIC CONSTANTINO, Respondent, v. THOMAS J. LOREY, as Fulton County Sheriff and Administrator of the Fulton County Jail, et al., Appellants, et al., Respondents.

98918.

Appellate Division of the Supreme Court of the State of New York, Third Department.

April 27, 2006.

Appeal from a judgment of the Supreme Court (Aulisi, J.), entered June 28, 2005 in Fulton County, which granted petitioner's application, in a proceeding pursuant to CPLR article 70, and discharged petitioner.

Carpinello, J.

On April 6, 2005, respondent Sheryda Cooper, the Commissioner of the Fulton County Department of Social Services, sought to have petitioner incarcerated for violating an order of protection issued by Family Court (Jung, J.) by failing to complete substance abuse counseling, or visit her children. At the time this violation proceeding was commenced, however, petitioner was already incarcerated in the Schenectady County Jail on unrelated charges. Indeed, this jail was listed as her address on the summons and she was in fact served there. Knowing that a hearing was scheduled for April 11, 2005, petitioner repeatedly endeavored, without success, to contact the Fulton County Family Court. Specifically, she asked jail officials to provide her with the address and telephone number for the court. No one at the jail would do so. She also asked jail officials to contact the Fulton County Family Court on her behalf or, at the very least, advise the court of her incarceration. Again, they would not do so. Rather, she was repeatedly informed by jail officials that the Fulton County Family Court knew of her incarcerated status and would issue an order to produce thereby ensuring her appearance in court on the day in question.¹

Petitioner further sought the assistance of family in an effort to contact the Fulton County Family Court. Petitioner's mother telephoned the court on April 11, 2005 and asked what she needed to do to arrange an order to produce for her daughter. She was advised by a female employee that "there was nothing [she] could do, that [petitioner] would have to do [it herself]."² When petitioner's mother explained that petitioner was unable to do so because she was in the Schenectady County Jail, the court employee merely responded, "Oh well."

Having failed in her repeated efforts to contact the Fulton County Family Court, and given that court's policy not to issue an order to produce in the absence of a written request (see n 2, supra), petitioner did not attend the scheduled hearing on the violation proceeding since she remained incarcerated. Upon her failure to appear, Family Court, among other things, found her to be in default and sentenced her to 180 days in jail for violating the prior order. Even though no evidence was offered or testimony taken, the court's written decision indicated that a fact-finding hearing in fact took place. Thereafter, petitioner commenced this proceeding pursuant to CPLR article 70 for a writ of habeas corpus. Following a hearing, Supreme Court granted the petition, vacated the default judgment and ordered petitioner's immediate release. This appeal ensued.

Under the circumstances of this case, we hold that Supreme Court did not err in granting petitioner's application for a writ of habeas corpus. As noted in People ex rel. Keitt v. McMann (18 NY2d 257, 262 [1966]), "habeas corpus is an appropriate proceeding to test a claim that the relator has been imprisoned after having been deprived of a fundamental constitutional or statutory right" (see People ex rel. Lobenthal v. Koehler, 129 AD2d 28, 30 [1987] [use of habeas corpus applies to cases involving a finding of civil contempt]). Moreover, as more recently noted by this Court, "due process requires that, in contempt...