A woman prayed for and obtained two order of protection against her ex-husband: one from the Monroe County Family Court and the other from the Rochester City Court on December 11, 1996 and February 9, 1996. The orders of protection were served on the ex-husband ordering him to refrain from making any contact whatsoever with his ex-wife.
On Christmas Day, just 14 days after the second Order of Protection was served and entered, the ex-wife received 11 phone calls at her apartment. The caller hung up and never said a word. The police traced five of those phone calls and found that they had originated from the apartment of the woman’s ex-husband.
A New York Criminal Lawyer said the woman went before the Family Court and commenced an action for contempt against her ex-husband because of those five phone calls. The Family Court found the ex-husband guilty of contempt and sentenced him to six months’ imprisonment.
Six months later, the district attorney indicted the ex-husband on five counts of criminal contempt, five counts of aggravated harassment in the second degree and one count of aggravated harassment in the first degree. The contempt and aggravated harassment charges all stemmed from the same five phone calls which the ex-husband made to his ex-wife on Christmas Day; the same five phone calls for which he was already found guilty of and imprisoned for contempt six months before.
The ex-husband filed a motion to dismiss his indictment for five counts of criminal contempt, five counts of aggravated harassment in the second degree and one count of aggravated harassment in the first degree. The only ground of his motion to dismiss the indictment was his argument that his prosecution for criminal contempt put him twice in jeopardy. But the criminal trial court denied his motion and convicted him of all the counts under the indictment.
The ex-husband appealed the criminal trial court’s denial of his motion. A Nassau County Family Lawyer said on appeal, he also asserted that his indictment for criminal contempt and aggravated harassment violates his constitutional right under the Fifth Amendment not to be put twice in jeopardy for the same offense.
The only question before the appellate court is a question of law to determine whether the subsequent indictment for criminal contempt constitutes double jeopardy.
The People assert that no double jeopardy attaches because the civil contempt for which he was found guilty and imprisoned for six months was not a criminal prosecution, it was merely an enforcement of the orders of protection previously procured by the ex-wife. Its purpose was to lessen the risk of domestic violence against the ex-wife. Whereas, the indictment for criminal contempt and for five counts of 2nd degree aggravated harassment and one count of 1st degree aggravated harassment is a criminal case. Thus, there are no two criminal prosecutions for the same offense.
The Court rejected the People’s contention. It found that the civil contempt was punitive in nature. The level of evidence required to be found in civil contempt was also proof beyond reasonable doubt and the punishment was imprisonment. The elements of civil contempt and the elements of criminal contempt are the same. In the civil contempt charge, the elements were: that orders of protection had been issued by the court and served upon the ex-husband; and the husband called the wife in utter violation of the orders of protection he had been served. The two prosecutions for contempt while differently named as civil and criminal complaint are the same. Just because one contempt conviction was handed down by a civil court does not mean that the conviction is not a criminal conviction. Because it resulted in the imprisonment of the ex-husband, the civil contempt conviction can be considered a first prosecution for the five phone calls and the criminal contempt indictment in criminal court constitutes a second prosecution for the same five phone calls. No amount of semantics could deny that the civil contempt proceedings were actually a criminal prosecution.
The Court went further to reason that the civil contempt was a lesser included offense in criminal contempt and that the ex-husband should have been indicted first for the criminal contempt as the civil contempt would have been deemed included in that indictment. But since the ex-husband had already been convicted for the lesser offense of civil contempt he can no longer be indicted for the more serious offense of criminal contempt. His indictment and conviction are unconstitutional.
However, the appellate court cannot rightly dismiss all the charges in the indictment. A Queens Family Lawyer said the elements of the charge of aggravated harassment are not the same as the elements of contempt. There is aggravated harassment when any one with intent to harass, annoy, threaten or alarm another person, calls that other person without any purpose of legitimate communication even when no conversation ensues. The elements of the aggravated harassment charge are not the same as the elements for the civil contempt charge. Indictment and prosecution for civil contempt cannot preclude indictment, prosecution and conviction for aggravated harassment as the elements of these two crimes are very different. Here, the prosecutions may have stemmed from the same act of making five phone calls but when the ex-husband made those five phone calls, he actually committed two crimes: contempt and aggravated harassment. His conviction for aggravated harassment was not unconstitutional for it does not violate his right against double jeopardy under the Fifth Amendment as the two prosecutions were not for the same offense.
The judgment of conviction is modified: the appellate court affirmed the conviction for 5 counts of aggravated harassment in the second degree and one count of aggravated harassment in the second degree; the part of the indictment which charged the ex-husband with five counts of criminal contempt is dismissed and his conviction for it is reversed.
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