| Matter of Tanya T. McD. v Timothy E.D. |
| 2009 NY Slip Op 04291 [63 AD3d 423] |
| June 2, 2009 |
| Appellate Division, First Department |
| In the Matter of Tanya T. McD., Respondent, v TimothyE.D., Appellant. |
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Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about January18, 2008, which, upon a finding that respondent father was in willful violation of a child supportorder, committed him to the New York City Department of Correction for a term of six monthsto be served on weekends only, unanimously reversed, on the law, without costs, and the petitiondismissed.
We reach the father's contention that he was deprived of his right to counsel at the hearingthat resulted in the issuance of the order of commitment, even though the father's jail term hasended (see Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; Matter of Michelle F.F. v Edward J.F.,50 AD3d 348, 349 [2008], lv denied 11 NY3d 708 [2008]). Since the proceedingwas one that could and did result in the loss of physical liberty, the father had both aconstitutional and statutory right to have assigned counsel (see Matter of Broome County Dept. of Social Servs. v Basa, 56 AD3d1092, 1093-1094 [2008]; Matter ofEr-Mei Y., 29 AD3d 1013, 1015 [2006]; Family Ct Act § 262 [a] [vi]).Furthermore, the fact-finding order and recommendation of the Support Magistrate specificallystates that the father invoked his right to counsel, and that the matter proceeded notwithstandingthe unavailability of counsel for assignment.
Under the circumstances presented, no further proceedings are warranted inasmuch as theappeal is from an order of commitment which has already been served. Concur—Tom,J.P., Saxe, Sweeny, Acosta and Abdus-Salaam, JJ.