| Matter of Zachary EE. (Misty DD.) |
| 2010 NY Slip Op 01855 [71 AD3d 1239] |
| March 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Zachary EE., a Neglected Child. Clinton CountyDepartment of Social Services, Respondent; Misty DD., Appellant. |
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Spain, J. Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.),entered January 5, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 10, to hold respondent in willful violation of a prior order, and (2) from anorder of said court, entered May 27, 2009, which, among other things, vacated the order enteredon January 5, 2009.
In conjunction with a petition alleging that she had neglected her son (born in 2008), atemporary order of protection was entered against respondent by Family Court in March 2008,which order she later admitted to violating. In an April 2008 order, she was found to havewillfully violated the temporary order of protection and was sentenced to six months in jail, withthe sentence suspended subject to a number of conditions. A final order of protection, onconsent, was also made on the same date in conjunction with the dispositional order in theneglect proceeding, both of which contained conditions.
In September 2008, petitioner filed a petition alleging that respondent violated the conditionsof the suspended sentence, the dispositional order and the order of protection by, among otherthings, leaving her inpatient treatment program, and by not notifying her caseworker of a changein her address within three days. Thereafter, respondent admitted in Family Court to failing toprovide her change of address in violation of the dispositional order [*2]and order of protection and then stipulated to failing to complywith the rules and recommendations of her treatment program in violation of one of theconditions upon which the six-month jail sentence had been suspended. Family Court's ensuingorder, entered January 5, 2009, sentenced respondent to 18 days in jail for the change of addressviolation and, based on respondent's stipulation, revoked her suspended sentence and imposedthe six-month jail sentence. In imposing these sentences consecutively, the court directed thather 49 days of time already served be credited against the 18-day jail sentence, but refused tocredit any of her remaining time served against the six-month sentence. Respondent timelyappealed from that order and, on February 13, 2009, she surrendered her parental rights to thesubject child. On February 27, 2009, this Court granted respondent's motion for a stay of hersentence and she was released, pending the outcome of her appeal. In March 2009, respondentmoved in Family Court seeking specifically to have the remainder of her six-month sentencevacated, but Family Court instead vacated its January 5, 2009 order—on its ownmotion—and ordered (and scheduled) an evidentiary hearing on the suspended sentenceviolation. Respondent also appealed from Family Court's order of vacatur and this Courtsubsequently stayed the court from proceeding with that hearing.
Initially, we reject respondent's assertion that Family Court lacked the authority to lift thesuspension on her six-month jail sentence. The record amply reflects that respondent knowingly,intelligently and voluntarily admitted to and stipulated to willfully failing to comply withcourt-ordered conditions in violation of the previously issued dispositional order and order ofprotection, and that she fully understood that her stipulation constituted an admission to aviolation of the order that suspended her previously imposed six-month jail sentence.
We agree, however, with respondent's contention that, under these circumstances, FamilyCourt lacked jurisdiction to vacate, sua sponte, its order sentencing respondent to jail for sixmonths and restoring the violation petition proceedings to the calendar for trial. Contrary toFamily Court's decision, vacating the order in question was far from what was requested inrespondent's motion. While during the pendency of an appeal a trial court can correct ministerialerrors or defects by way of vacatur of its prior orders and judgments and may entertain motions,it cannot, sua sponte, vacate a prior order from which an appeal has been taken (see Matter of Rospigliosi v Abbate, 31AD3d 648, 649-650 [2006]; Matter of Owens v Stuart, 292 AD2d 677, 678-679[2002]). "If it were able to do so, the issuing court would, in effect, be insulating its subsequentorder from appellate review as of right" (Matter of Rospigliosi v Abbate, 31 AD3d at650 [citations omitted]).
Finally, at the time that Family Court lifted the suspension of the six-month jail sentence,respondent had been held in jail for 49 days. Respondent was sentenced to 18 days in jail on theunderlying violation and the court ordered that the remaining 31 days of time served not becredited toward respondent's six-month sentence. In accordance with our discretion, we herebycredit her with those 31 days of time served and vacate the remainder of her jail sentence.
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order entered May27, 2009 is reversed, on the law, without costs. Ordered that the order entered January 5, 2009 ismodified, on the facts, without costs, by crediting respondent's jail sentence with 31 days of timeserved and by vacating the remainder of her sentence, and, as so modified, affirmed.