NEW YORK (AP) _ Comedian David Brenner's 9-year-old son, the subject of an ugly five-year custody battle, surfaced with his mother at a Manhattan courthouse Wednesday, a week after both had vanished.

Charisse Brody, who fled last week with her son Cole, will not face charges for taking the boy and disappearing, state Supreme Court Justice David Saxe ruled after the return.

Saxe denied a request by Brenner's lawyer, David Ettinger, to send Brody to jail. The judge said he would overlook her disobedience of his order of last Thursday that gave Brenner custody of the boy until a hearing on permanent custody is held within the next few weeks.

Saxe rejected Brody's plea to keep Cole until Brenner finishes a two-week engagement at the Sands hotel-casino in Las Vegas.

Cole, who waited with his grandmother in Saxe's chambers during the hearing, will live at Brenner's home in Aspen, Colo. He was to travel there late Wednesday with the comic's secretary.

Saxe said he had spoken to the boy and found that ''despite the problems of the parents, he's a nice kid.''

''This is the first time in nine years that Cole is going to be living in a drug-free world,'' Brenner said from Las Vegas after the hearing. ''I'm going to do all I can to make sure that it's a permanent situation.''

The comedian, who used the television shows of Arsenio Hall and Joan Rivers to appeal for his son's return, said he was reversing his position that he did not object to Cole living with Brody as long as she was drug-free. ''I'm going for permanent custody now,'' he said.

Brody, Brenner's ex-girlfriend, took off with the boy after refusing to submit to a court-ordered drug test on Oct. 2. Saxe rejected an appeal by Brody's attorney, Raoul Felder, to withdraw from the case due to his client's behavior.

Brenner, an admitted drug user in the past, showed no evidence of drug use in his court-ordered test. Both he and Brody will be examined by a psychiatrist before a final custody decision is made.

As Brody entered the courthouse, accompanied by her stepfather Philip Brody, her mother Barbara, and Cole, she denied Brenner's allegations that the boy was endangered because of her drug problems.

''He was in terrible danger - danger of having too much love,''she said.

In court, a weeping Brody read an impassioned letter to Saxe apologizing for her actions and declaring she was now drug-free and working fulltime, as a saleswoman at a chocolate shop in Trump Tower here.

She begged him to let the boy stay with her until Brenner ends a two-week stand in Las Vegas on Oct. 17. Otherwise, Cole will be sent ''to an empty house in the care of hired help or one of his (Brenner's) girlfriends.''

Cole has been at the center of a five-year custody battle between Brenner and Brody. She received custody of the child in 1986. In January, the comedian snatched the boy from an Upper East Side street, claiming Cole was upset by his mother's drug-abusing lifestyle.

Brenner returned the boy to his mother in August on Saxe's order, but he received temporary custody of Cole after the drug-testing episode last week.

''I'm very, very upset about today's outcome,'' Brody said after the hearing. ''I've worked hard to get where I am. I'm drug-free. I took Cole because I love Cole.''

She and her stepfather suggested that Brenner made the charges against her to gain publicity for himself. ''I don't have an ailing career that needs the kind of boost this publicity would give it,'' she told Saxe. ''My only motive is my love for my son and his for me.''

''That's ludicrous,'' Brenner answered when told of the charge.