| Matter of St. Lawrence County Dept. of Social Servs. v Pratt |
| 2011 NY Slip Op 00064 [80 AD3d 826] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of St. Lawrence County Department of SocialServices, on Behalf of Joanne Petrie, Respondent, v Vincent Pratt,Appellant. |
—[*1] Amy V. Casiuk, St. Lawrence County Department of Social Services, Canton, forrespondent.
Lahtinen, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered January 27, 2010, which, in a proceeding pursuant to Family Ct Act article 4, amongother things, revoked respondent's suspended sentence of incarceration.
Respondent has a dismal record of repeatedly failing to comply with child support orders andhe is over $24,000 in arrears. As currently relevant, upon the consent of respondent in August2008, Family Court ordered a 180-day sentence for his willful violation of a support order; thesentence was suspended upon the condition that he make monthly payments of $150 towardarrears. He failed to make the payments and, following a hearing, Family Court vacated thesuspension of the sentence and committed respondent to jail for 180 days unless he paid $5,000toward arrears. The court further directed that he not receive allowances for good behavior unlesshe made the $5,000 payment. Respondent appeals.
Respondent's challenge to Family Court's determination of a willful violation is not properlybefore us since he did not appeal from the August 2008 order (see Matter of Clark v Clark, 61 AD3d1274, 1275 [2009], lv denied 13 NY3d 702 [2009]). In any event, he consented tothe August 2008 order, and it is undisputed that he failed to make the payments that resulted insuch order and he continued thereafter not to make payments. Regarding his claimed inability to[*2]pay, upon which he had the burden of proof, his owntestimony established that he had failed to make any reasonable efforts to obtain any type of workafter his taxi business faltered many months earlier (see Matter of Bouchard v Bouchard,263 AD2d 775, 777 [1999]).
Next, respondent contends that Family Court erred in directing that he not receive goodbehavior allowances during his 180-day jail term unless he made a $5,000 payment towardarrears.[FN1]Although the issue is moot since respondent has completed his sentence (see Matter of Lewis v Cross, 72 AD3d1228, 1229 [2010]), we nevertheless will address it because it is "a significant issue which islikely to recur and evade review" (Matter of William S., 74 AD3d 1684, 1685 [2010]; see Matterof Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).[FN2]Correction Law § 804-a addresses good behavior allowances for civil commitments andthe statute limits such allowances to a situation where "release is not conditional upon any actwithin [the confined person's] power to perform" (Correction Law § 804-a [1]). When thisstatute was enacted in 1987 to clarify that good behavior allowances were permitted in certaincivil commitments, it was noted that "[t]he purpose in limiting good behavior allowances to onlycertain civil commitments is that, where an individual has the option of performing an act whichwould terminate his [or her] commitment, it would be contrary to public policy to allow thisindividual to receive good time" (Mem of State Commn on Correction, 1987 McKinney'sSession Laws of NY, at 2384). Here, Family Court rejected respondent's credibility regarding hisfinancial circumstances. He had continued on the course described in our decision in one of hisearlier appeals of "an ongoing unwillingness to give the child support obligation a properpriority" (Matter of St. LawrenceCounty Dept. of Social Servs. v Pratt, 44 AD3d 1125, 1126 [2007], lv dismissed anddenied 9 NY3d 1020 [2008]). Under the prevailing circumstances, Family Court's directionregarding good behavior allowances was consistent with the statute.
The record reveals that meaningful representation was provided to respondent and, thus, hiscontention that he did not receive the effective assistance of counsel is unavailing (see Matter of St. Lawrence County SupportCollection Unit v Cook, 57 AD3d 1258, 1260 [2008], lvs denied 12 NY3d 707[2009]).
Peters, J.P., Spain, Rose and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Since such payment would haveresulted in his release, the effect of the order was to remove good behavior allowances as anoption in his sentence.
Footnote 2: We note that there appears to beno appellate court decision addressing the issue and, while one reported lower court decisiondiscusses the statute, it does so within the context of a different issue (see Matter of McLeodv Stancari, 150 Misc 2d 115, 115-116 [1991]).