People v. Simplice

ARTHUR M. SCHACK, J. The issue before the court is whether the Board of Education On July 20, 2001, the Corporation Counsel finally appeared in this case by filing its affirmation in opposition to order to show cause for civil contempt, 39 days after the Board of Education complied with the subpoena on June 11, 2001.

Judiciary Law §§ 753 and 773 are the relevant authority and discuss the court's power to punish for civil contempt and its right to impose sanctions where necessary. By holding the Board of Education of the City of New York in contempt for failure to comply with duties it assumed under a consent decree in Aspira of N. Y. v Board of Educ. (423 F Supp 647, 649 [SD NY 1976]), the court stated: "The word `contempt' rings fiercely; if its connotations in law included only lay notions like scorn and wilful disobedience, plaintiffs could not prevail. But the idea in this context includes failures in meaningful respects to achieve substantial and diligent compliance. In this sufficient sense, the defendants are found to have been in contempt, and it has become the court's duty to declare it." Similarly, in the instant case, the Board of Education of the City of New York had "failures in meaningful respects to achieve substantial and diligent compliance" in a timely manner. The Criminal Court, as a court of record, is authorized to issue a subpoena duces tecum in accordance with CPL 610.20 (1) which provides that "[a]ny criminal court may issue a subpoena for the attendance of a witness in any criminal action or proceeding in such court." The term subpoena includes, as is stated explicitly in CPL 610.10 (3), a "subpoena duces tecum," which is a subpoena which requires a witness to bring and produce specified physical evidence. In the instant case, defense counsel secured a subpoena duces tecum and had it "so ordered" by the court, giving it the full effect of a court order pursuant to CPLR 2307 (see CPL 610.20 [3]). To find that contempt has occurred in a given case "it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must [also] appear, with reasonable certainty, that the order has been disobeyed * * * [and that] the party to be held in contempt had knowledge of the court's order." (McCormick v Axelrod, 59 NY2d 574, 583 [1983].) In the instant case, it is clear that an order was in effect, ample time was given for compliance, and the order was willfully disobeyed. In their opposition papers as stated above in paragraph 7, the Board of Education stated that they "made a legal decision 1998]), the Court held that a wife is entitled to an award of reasonable attorney fees as a result of her husband's civil contempt. In Kiperman v Steinberg (234 AD2d 518 [2d Dept 1996]) the Court awarded costs and attorneys' fees and held that it was not a "sanction" or "punishment" in any worthwhile sense to award these monetary amounts. Thus, this court is guided by appellate authority as well as Matter of T.F., which awards both costs and attorney fees in a finding of civil contempt. In concluding that the Board of Education must be found delinquent, the court has not overlooked the obstacles and problems with which the Board of Education has to contend. The Corporation Counsel reported to the court at the October 10, 2001 court proceedings on this case that the Board of Education is improving its subpoena compliance procedures. In paragraph 9 of its opposition papers, the Corporation Counsel states that the Board of Education "is currently investigating the communication lapses that occurred in this case to insure that all future motions to quash are made in a timely manner. They are in the process of reorganizing their data banks and tickler systems to insure that they continue to deal effectively with the more than two thousand subpoenas a year to which they respond." However, in the instant case, justice has been unduly delayed. The Board of Education, the agency responsible for educating our youth about our system of justice and law, more than any other agency, must realize it is not above the law but subject to the same judicial process as all other agencies of government, business entities and individuals. While we all work in a city beset with social and financial travails, the court would be delinquent if it were not to enforce this contempt order against the Board of Education. All branches of government are beholden one to another. Harmony, rather than dissonance, streamlines the administration of justice.

The court grants defendant's motion and finds the Board of Education of the City of New York to be in civil contempt for failing to comply in a timely manner with the subpoena duces tecum issued in this case; and Jenny Soto, as agent of the Board of Education only, to be in civil contempt for failing to comply in a timely manner with the subpoena duces tecum issued in this case. The court orders that an evidentiary hearing be scheduled at the convenience of the parties to determine the penalty to be imposed upon the Board of Education of the City of New York, and attorney fees and costs of this motion.