| Matter of Storelli v Storelli |
| 2012 NY Slip Op 09264 [101 AD3d 1787] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Elizabeth Storelli, Respondent, v AnthonyStorelli, Appellant. |
—[*1] William K. Taylor, County Attorney, Rochester (Alecia J. Spano of counsel), forpetitioner-respondent.
Appeal from an order of the Family Court, Monroe County (Joseph G. Nesser, J.), enteredSeptember 15, 2011 in a proceeding pursuant to Family Court Act article 4. The order, among otherthings, determined that respondent was in willful violation of a child support order
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts and the matter is remitted to Family Court, Monroe County, for a new hearing.
Memorandum: Respondent appeals from an order determining that he was in willful violation of achild support order and sentencing him to six months' incarceration. We note at the outset thatrespondent's appeal is not moot. "Inasmuch as enduring consequences potentially flow from an orderadjudicating a party in civil contempt, an appeal from that order is not rendered moot simply becausethe resulting prison sentence has already been served" (Matter of Bickwid v Deutsch, 87NY2d 862, 863 [1995]).
We agree with respondent that he was denied his right to counsel at the hearing before the SupportMagistrate to determine whether he was in willful violation of the support order. "Although a party mayproceed pro se, [a] court's decision to permit a party who is entitled to counsel to proceed pro se mustbe supported by a showing on the record of a knowing, voluntary and intelligent waiver of the [right tocounsel] . . . In order for the court to ensure that the waiver of the right to counsel is valid,the court must conduct a searching inquiry of [the] party . . . [, and] there must be ashowing that the party was aware of the dangers and disadvantages of proceeding without counsel" (Matter of Commissioner of Genesee CountyDept. of Social Servs. v Jones, 87 AD3d 1275, 1275-1276 [2011] [internal quotation marksomitted]). The record establishes that respondent advised the Support Magistrate that he had spoken toa person at the Public Defender's Office and expected an attorney to be at the hearing. The SupportMagistrate reminded respondent that he stated at the initial appearance that he would be representinghimself. When asked by the Support Magistrate whether he was prepared to go forward with thehearing, respondent replied "Well, I guess I am." " 'Where, as here, the court fails to conduct asearching inquiry, reversal is required' " (id. at 1276). We therefore reverse the order and remitthe matter to Family Court for [*2]a new hearing.Present—Scudder, P.J., Smith, Fahey, Carni and Martoche, JJ.