James v. Powell

Botein, P. J.

(dissenting). Criminal contempt is a crime in the ordinary sense,” we have recently been reminded; “ it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both ” (Bloom v. Illinois, 391 U. S. 194, 201). The right of appeal from an adjudication entailing loss of liberty and reputation is a valuable right, and if there are doubts as to the technical adequacy of its exercise they should *342be resolved in favor of the accused. Applying this standard, the notice of appeal may be ill phrased; but in the light of appellant’s evident expectation, expressed in written and oral argument, that the merits of the November 17, 1966 order were raised and were before us, I am not prepared to construe the notice so narrowly as to deprive him of an important right. This conclusion would appear to accord, I may add, with the spirit of CPLR 5520 (subd. [c]) and section 524-c of the Code of Criminal Procedure (cf. Twelfth Annual Report of N. Y. Judicial Conference, 1967, pp. 337, 252, and Judicial Conference Memorandum, McKinney’s 1967 Sess. Laws, p. 1466). In my opinion we are required to review the adjudication of November 17,1966 and any nonfinal order necessarily affecting it in accordance with CPLR 5501 (subd [a], par. 1). Accordingly, I must dissent and vote to entertain this appeal.

Steuer, Tilzer and McNally, JJ., concur in Per Curiam opinion, dismissing appeal from order entered November 28, 1966; Botein, P. J., dissents and votes to entertain the appeal in opinion, in which Rabin, J., concurs.

Botein, P. J., Steuer, Tilzer, Rabin and McNally, JJ., concur in affirmance of the order entered November 30,1966.

Appeal from the order entered on November 28, 1966, dismissed, without costs or disbursements.

Order entered on November 30, 1966, unanimously affirmed, without costs or disbursements.