2. Criminal contempt

Since a finding of contempt is a "drastic measure," Oak Beach Inn Corp., 62 N.Y.2d at 165, in the case of confidential material, imposition of a fixed criminal contempt sentence on a journalist or news organization is virtually unheard of in New York (at least since the enactment of the Shield Law). The offenses that constitute a criminal contempt are listed in § 750 of New York's Judiciary Law and, in general terms, as one commentator has noted, "a contempt is or becomes criminal when it threatens the power and dignity of the law itself." David D. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated. It is "designed to vindicate and uphold the authority of the judiciary and the penalty is punitive." David D. Siegel, New York Practice § 482. Pursuant to Judiciary Law § 751 (1), criminal contempt is punishable "by fine, not exceeding $1000, or by imprisonment, not exceeding 30 days, . . . or both . . . ."

Generally, imposition of a contempt sentence for refusing to testify subject to a valid subpoena will require a showing of willful defiance, even though § 750 of the Judiciary Law makes no reference to willfulness or intent. Abrams v. New York Foundation for the Homeless, 190 A.D.2d 578, 593 NYS2d. 518, app dismissed without opp., 81 NY2d 954, 597 NYS2d939, 613 NE2d 971 (1st Dep't 1993) (finding that the defendant's persistent and willful defiance of the Supreme Court's subpoena warranted a finding of contempt.). It is the moving party's burden to establish not only that the subpoena is valid, but that the respondent's non-compliance is deliberate and willful. 21 N.Y. Jur. Contempt §20 (1996).

While some New York cases have found journalists liable for criminal contempt, typically they have been reversed or were decided prior to the enactment of New York's Shield Law. See discussion in section VII D (1) (b), supra.