§ 770. Final order directing punishment; exception. Upon the return of an application to punish for contempt, or upon a hearing held upon a warrant of commitment issued pursuant to section seven hundred seventy-two or seven hundred seventy-three of this article, the court shall inform the offender that he or she has the right to the assistance of counsel, and when it appears that the offender is financially unable to obtain counsel, the court may in its discretion assign counsel to represent him or her. If it is determined that the accused has committed the offense charged; and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, brought in the court, or before the judge or referee; the court, judge, or referee must make a final order directing that he or she be punished by fine or imprisonment, or both, as the nature of the case requires. A warrant of commitment must issue accordingly, except as hereinafter provided. Where an application is made under this article and in pursuance of section two hundred forty-five of the domestic relations law or any other section of law for a final order directing punishment for failure to pay alimony, maintenance or counsel fees pursuant to an order of the court or judge in an action for divorce or separation and the defaulting spouse appears and satisfies the court or a judge before whom the application may be pending that he or she has no means or property or income to comply with the terms of the order at the time, the court or judge may in its or his discretion deny the application to punish the defaulting spouse, without prejudice to the applicant's rights and without prejudice to a renewal of the application upon notice and after proof that the financial condition of the defaulting spouse is changed.
Where an application is made to punish an offender for an offense committed with respect to an enforcement procedure under the civil practice law and rules, if the offender appear and comply and satisfy the court or a judge before whom the application shall be pending that he has at the time no means or property or income which could be levied upon pursuant to an execution issued in such an enforcement procedure, the court or judge shall deny the application to punish the offender without prejudice to the applicant's rights and without prejudice to a renewal of the application upon notice and after proof that the financial condition of the offender has changed.
