NY Court Weighs Fate of Reluctant Witness


New York’s top court is considering the legal fate of a man who got immunity from prosecution by giving grand jury testimony against his brother in a stolen property case and then refused to follow through and testify at trial.

Erie County prosecutors tried to charge Tyrone Sweat with criminal contempt after he spent two days in jail for contempt during brother Michael Sweat’s 2012 trial.

Lower courts said no, calling it double jeopardy. Now it’s up to the Court of Appeals, which heard from both sides on Tuesday.

“It’s a very common problem,” Assistant District Attorney Nicholas Texido said about witnesses refusing to testify. He urged the top court to let prosecutors reinstate the two misdemeanor counts of criminal contempt.

In the Sweat case, the issue was whether the trial judge jailed him simply in an attempt to compel him to testify, a matter of civil contempt, or whether he jailed him as punishment for criminal contempt, which would prohibit charging him again with the same crime.

Tyrone Sweat said at Michael Sweat’s trial that he was “morally opposed” to testifying against his brother. The judge jailed him. Michael Sweat was acquitted. The judge released Tyrone Sweat.

Texido said the purpose of the contempt finding was to get the testimony.

“He was punished,” countered defense attorney David Abbatoy.

A lower court said it was both, based on the trial judge’s comments, and therefore Tyrone Sweat’s two days in jail amounted to a sentence of time served.

Judge Jenny Rivera questioned whether the issue was whether judges have to be very clear whether they’re citing witnesses for civil or criminal contempt.

Abbatoy, the defense lawyer, was asked whether this case provides a road map for thwarting prosecutions, with witnesses testifying before a grand jury, then refusing to testify later.

“Could somebody game the system?” Abbatoy said. “It’s really up to the judge.”

The possible punishment for criminal contempt under New York’s Judiciary Law is 30 days in jail and a fine of $1,000.