127 Misc. 2d 289 | N.Y. Sup. Ct. | 1985
OPINION OF THE COURT
A CPLR article 78 proceeding was brought by petitioner herein to review the respondent’s determination which denied petitioner consideration of good time credit.
The facts in this matter are that on January 3, 1985, petitioner, Patricia Sanford Trice, wás found in civil contempt of court, pursuant to Judiciary Law § 750 (A) (5) and was directed to be imprisoned in the Onondaga County Correctional Facility for a term of 30 days and fined $250. The parties hereto have stipulated to this court that though there has been a finding of civil contempt, in actuality petitioner Trice was found in criminal contempt of court pursuant to Judiciary Law § 750 (A) (5); §§ 751, 755.
Pursuant to this adjudication of criminal contempt, petitioner was transported to the Onondaga County Correctional Facility on January 3,1985. Petitioner has requested from respondent to be considered for good time allowance pursuant to Correction Law § 804. Respondent has denied petitioner’s request on the ground that she is not entitled to consideration of good time allowance under an adjudication of criminal contempt.
Petitioner herein asserts that Judge Cunningham’s sentence is for a definite term, to wit, 30 days, and, therefore, she is
Correction Law § 804 (1) provides in part that: “Every person confined in an institution serving a definite sentence of imprisonment may receive time allowances as discretionary reductions of the term of his sentence not to exceed in the aggregate one-third of the term imposed by the court.” The sole question which has been presented to this court is whether the aforesaid section is applicable to petitioner’s imprisonment based on her being adjudicated in criminal contempt of court. Analyzing first Correction Law § 804, the keystone phrase for the parties’ contentions is “definite sentence”. A “[sjentence” is defined by CPL 1.20 to mean “the imposition and entry of sentence upon a conviction.” Further, a “[c]onviction” is defined pursuant to CPL 1.20 (13) to mean “the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of sdch instrument.” In reviewing the applicable sections of the Judiciary Law, the language contained therein provides that one is “punished” for a criminal contempt and thereafter “committed” or “imprisoned” rather than being convicted and sentenced for a crime with its attendant rights and formalities. Indeed, the court’s power to punish for criminal contempt is clearly not based upon accusatory instruments, but rather exists to uphold and vindicate the authority mandates and decorum of an individual court (People v Paperno, 98 Misc 2d 99 [1979]). Further, as in the case at bar, it may be determined summarily when the contempt is committed in the immediate view and presence of the court (Judiciary Law §§ 751, 755). Thus, from the applicable statutes, it appears that petitioner’s punishment for criminal contempt would not be a sentence for purposes of Correction Law § 804.
More importantly, it is the opinion of this court that this commitment is not for a “definite” term. Though Judge Cunningham’s order specifies that the petitioner is to be imprisoned for a period of 30 days, this term is but a maximum, for petitioner’s punishment is ongoing in nature based on her unwillingness to testify and may be purged upon her determination to comply with the directives of the court. Petitioner’s criminal contempt citation is remedial and coercive in nature and attempts to force petitioner to do what she has refused to do,
For the reasons set forth above, petitioner’s commitment for criminal contempt is not a definite sentence within the parameters of Correction Law § 804 so as to entitle petitioner consideration of good time allowance and, therefore, the petition is dismissed.