In re Zachary EE.
In the Matter of ZACHARY EE., a Neglected Child. CLINTON COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; MISTY DD., Appellant. [897 NYS2d 287]
Spain, J. Appeals (1) from an order of the Family Court of Clinton County (Lawliss, J.), entered January 5, 2009, which granted petitioner‘s applicаtion, in a proceeding pursuant to
In conjunction with a petition alleging that she had neglected her son (born in 2008), a temporary order оf protection was entered against respondent by Family Court in March 2008, which order she later admitted tо violating. In an April 2008 order, she was found to have willfully violated the temporary order of protection and was sentenced to six months in jail, with the sentence suspended subject to a number of conditions. A final оrder of protection, on consent, was also made on the same date in conjunction with the dispositional order in the neglect proceeding, both of which contained conditions.
In September 2008, petitioner filed a petition alleging that respondent violated the conditions of the suspended sentence, the dispositional order and the order of protection by, among other things, leaving her inpatient treatment program, and by not notifying her caseworker of a change in her address within threе days. Thereafter, respondent admitted in Family Court to failing to provide her change of address in violаtion of the dispositional order and order of protection and then stipulated to failing to
Initiаlly, we reject respondent‘s assertion that Family Court lacked the authority to lift the suspension on her six-mоnth jail sentence. The record amply reflects that respondent knowingly, intelligently and voluntarily admitted tо and stipulated to willfully failing to comply with court-ordered conditions in violation of the previously issued disрositional order and order of protection, and that she fully understood that her stipulation constituted an admission to a violation of the order that suspended her previously imposed six-month jail sentenсe.
We agree, however, with respondent‘s contention that, under these circumstances, Family Court lаcked jurisdiction to vacate, sua sponte, its order sentencing respondent to jail for six months and restoring the violation petition proceedings to the calendar for trial. Contrary to Family Court‘s deсision, vacating the order in question was far from what was requested in respondent‘s motion. While during the pendency of an appeal a trial court can correct ministerial errors 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, 31 AD3d 648, 649-650 [2006]; Matter of Owens v Stuart, 292 AD2d 677, 678-679 [2002]). “If it were able to do so, thе issuing court would, in effect, be insulating its subsequent order from appellate review
Finally, at the time that Family Cоurt lifted the suspension of the six-month jail sentence, respondent had been held in jail for 49 days. Respondеnt was sentenced to 18 days in jail on the underlying violation and the court ordered that the remaining 31 days of timе served not be credited toward respondent‘s six-month sentence. In accordance with our discrеtion, we hereby credit 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 May 27, 2009 is reversed, on the law, without costs. Ordered that the order entered January 5, 2009 is modified, on the facts, without costs, by crediting respondent‘s jail sentence with 31 days of time served and by vacating the remainder of her sentence, and, as so modified, affirmed.