People ex rel. Feldman v. Warden on New York City Correctional Institute for Women

Capozzoli, J. We agree with the statement in the dissent that we must be governed in our determination by a consideration of [257] the best interests of the child involved in this proceeding. Unfortunately, since the child was never produced in court it is difficult to know how to best deal with the situation. The record is clear that this appellant has stubbornly, willfully and contumaciously refused to obey the direction of the court to produce the child. The experienced jurist, before whom this proceeding has been pending from its very start about 14 months ago, held prolonged hearings which lasted about five days and produced almost 500 pages of minutes, leading to the judgment from which this appeal has been taken. We believe it will be of assistance in understanding the lack of merit to this appeal to quote from the record of the hearing. At pages 457-458 the, court said: “ With respect to the two other questions, that is, whether she has the power at the present time to obey the mandate of the Court, and the question as to whether the continued incarceration is punitive, there is no doubt that those two questions are related, because if she had no power to obey the mandate of the court, then continued incarceration would be punitive. “ However, if she has the power to obey the mandate of the Court, continued incarceration is coercive and not punitive. So, the factual question, basically is whether or not she has the power to obey the mandate of the Court. “ Upon this point, the Court finds that she still has the power to obey the mandate of the Court but has deliberately kept herself from exercising that power. “ Much of her testimony was evasive. As part of her testimony, she stated that * * * a particular Peter Yee was with her son Micah who was with David Rosoff. She has refused to disclose the name of some people she said she contacted. She has certainly not made the kind of an effort that a mother would normally make if her son’s whereabouts were unknown to her.” Even a casual review of the record inexorably leads one to conclude that the conclusions reached by the hearing court are completely justified on the basis of all the evidence adduced. We can see no reason for interfering with the court’s determination below. Frankly, we are at a loss to understand just exactly what our dissenting colleague would expect the Judge of the court below to do under the circumstances which faced him. This appellant simply refuses to obey the court’s direction and thereby keeps from the court a child of 12 or 13 years of age, who, according to the record, seems never to have attended school. Nothing is known about his physical condition, the conditions under which he is now living, or who has supervision over him, if anyone. [258] The dissent states: “ It may be that Jo Oppenheimer is not a fit person to have custody.” How does that affect the merits of this appeal? The hearing court stressed that it was not deciding custody, it wanted the boy produced so that he could see him and take such steps with regard to his welfare as the situation dictated. The law is clear that one who has been directed by a court to perform an act which the court finds is within that person’s power to perform, he may be imprisoned until the act is performed. Subdivision 1 of section 774 of the Judiciary Law, in part, reads as follows: ‘ ‘ Where the misconduct proved consists of an omission to perform an act or duty, which is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it ”. In Stewart v. Smith (186 App. Div. 755, 759), the court said: ‘ ‘ In certain circumstances, however, the party proceeded against may by his own act bring about a longer imprisonment than six months. Where the misconduct consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he may be imprisoned until he has performed. This is for the vindication of the authority of the court and to compel obedience to its mandate.” In People ex rel. New York State Labor Relations Bd. v. Westchester Movers (14 Misc 2d 1052, 1053), the court said: “ The respondents were clearly held in contempt for a willful failure and omission to perform acts which were then in .their power to perform and which acts they had been directed to perform by the order of the Appellate Division of the Second Department. As -the subject order indicates, it was the court’s intention, pursuant to sections 753 and 774 of the Judiciary Law, not only to impose a fine but also to order that the respondents be imprisoned until they had performed the aforesaid acts. It is clear that in the circumstances here present, both a fine and imprisonment may be imposed.” The reliance by appellant on Pereira v. Pereira (35 N Y 2d 301) and People ex rel. Valenti v. McCloskey (6 N Y 2d 390) is misplaced because both those cases are clearly distinguishable from the case at bar. We are satisfied that the direction to this appellant was clearly expressed and the finding of the court below that she has willfully refused to comply with same, although she has the present ability to do so, is justified by the evidence in this case. The appellant should not be allowed to bargain and barter with the [259] court on the conditions of her compliance, as is suggested by the dissent. The judgment should be affirmed, without costs.