Lead Opinion
Appeal from an order of the Family Court of Franklin County (Main Jr., J.), entered March 23, 2016, which, in a proceeding pursuant to Family Ct Act article 10, denied respondent’s motion to delay a prior sentence of incarceration.
Petitioner commenced this proceeding three months later, alleging that respondent had willfully violated the dispositional order by consuming forbidden substances and missing appointments with her therapist. Respondent appeared before Family Court and admitted to willfully violating the dispositional order, resulting in an August 2014 consent order in which she was sentenced to 90 days in jail and directed to report to the jail by a specified date. Family Court made clear that it would consider delaying the report date if respondent complied with the terms and conditions of her supervision going forward.
A series of modified orders of commitment followed that adjourned the report date but, as 2015 dawned, respondent tested positive for various substances and was held on a probation violation petition. Respondent was eventually found to have violated her probation and sentenced to a term of imprisonment, prompting Family Court to issue an order in July 2015 directing that she begin serving the jail sentence “immediately upon her release from [state prison] unless” other relief was sought by motion. Respondent moved for a further delay in the report date as her release from prison loomed, with her attorney representing that respondent had made productive use of her time in prison by completing an alcohol and substance abuse treatment program and obtaining her high school equivalency diploma. Following an appearance on the motion, Family Court issued an order in March 2016 deeming the jail sentence satisfied upon receipt of proof that respondent had completed the treatment program and obtained her diploma, as well as a copy of the terms of her parole supervision. Respondent failed to provide the demanded proof, and instead appeals from that order.
Respondent did not appeal from any order save that entered in March 2016, an order that did nothing beyond deeming a previously imposed jail sentence to be satisfied if certain documentation was provided, and her contentions “relating to th[e] prior orders are not properly before us” (Matter of Isaiah
Respondent moved for a stay pending the outcome of her appeal, which this Court granted.
Dissenting Opinion
(dissenting). Because Family Court did not obtain respondent’s consent to the conditions imposed upon her in the March 2016 order, and because Family Court’s practice of suspending sentences creates a multitude of issues, I respectfully dissent.
Pursuant to an April 2014 order of fact-finding and disposition, respondent was placed under the supervision of petitioner until February 21, 2015. Respondent was also subject to an order of protection directing her to refrain from certain acts and observe certain conditions until February 21, 2015, when such order expired.
Respondent was thereafter arrested at least twice and incarcerated at the Warren County Jail. On September 25,
On March 6, 2015, one month after her release from the Warren County Jail, respondent was arrested and incarcerated for a violation of probation and was ultimately sentenced to a state prison term. On April 3, 2015, Family Court issued a third modified order of commitment adjourning respondent’s reporting date until July 17, 2015. In a July 2015 compliance report, petitioner requested further adjournment of respondent’s reporting date, stating that, while incarcerated, respondent had enrolled in general equivolency diploma classes and applied to the shock incarceration program, as well as three parenting classes. However, despite petitioner’s request and representations regarding respondent’s compliance efforts while in state prison,
In February 2016, because “[t]he safety and well-being of [respondent’s child could] be sufficiently ensured by his custodial placement with his father,” petitioner notified Family Court that it would not be seeking an extension of the orders of
At a March 4, 2016 appearance on respondent’s order to show cause, at which all of the parties were present, respondent sought termination of the previously imposed 90-day jail sentence. Petitioner did not take a position and deferred to Family Court. Significantly, the attorney for the child stated that she “would [not] object to the sentence being terminated.” In a bench decision, Family Court held that it would deem the “sanctions satisfied” if respondent had “successfully completed the intense [alcohol and substance abuse treatment] program” and submitted a copy of the terms and conditions of her post-release supervision and proof that she had obtained her high school equivalency diploma. Despite respondent’s presence in Family Court, the record does not reflect that, at any time, Family Court sought respondent’s consent to the imposition of these new conditions. In fact, there is no colloquy at all between the court and respondent. On March 23, 2016, Family Court entered an order reflecting its bench decision, and it is from this order that respondent appeals.
In my view, the conditions imposed upon respondent in Family Court’s March 2016 order were improper. At that time, the orders of supervision and protection had expired and the court therefore lacked the authority to impose new conditions upon respondent (see generally Family Ct Act § 1072). Such conditions were not agreed to by respondent at the time that she admitted to a willful violation of the order of protection in June 2014 or included in the resulting August 2014 order. As a result, respondent had no notice that she would be expected to, among other things, obtain her high school equivalency diploma before the court would deem the 90-day jail sentence satisfied. Accordingly, respondent cannot now be expected to comply with conditions of which she did not have adequate prior notice, and such conditions should be struck from the March 2016 order (compare Matter of Isaiah M. [Nicole M.], 144 AD3d 1450, 1453 [2016], Iv dismissed 28 NY3d 1129 [2017]).
Furthermore, good cause does not exist, in my view, to support the denial of respondent’s order to show cause and adherence to the July 2015 order directing respondent to report to the Franklin County Jail upon release from state prison, as that order suffers from several underlying issues. Initially, as previously discussed, respondent did not have adequate notice or explanation of her compliance obligations under the August 2014 order (compare Matter of Isaiah M. [Nicole M.], 144 AD3d at 1453 [noting that the respondent was expressly advised of
Furthermore, in its July 2015 compliance report, petitioner requested an adjournment of respondent’s reporting date and advised Family Court that, among other things, respondent had applied for the shock incarceration program and was on the waiting list for three parenting classes. Despite petitioner’s adjournment request and updates regarding respondent’s compliance efforts, Family Court sua sponte “cancelled” the compliance conference date and directed respondent to surrender to the Franklin County Jail immediately upon her release from state prison. The court did so without affording respondent an opportunity to be heard on the matter (compare Matter of Isaiah M. [Nicole M.], 144 AD3d at 1454).
Accordingly, even if the improper conditions were struck from
Ordered that the order is affirmed, without costs.
. While the order of fact-finding and disposition and the order of protection were not included in the record on appeal, they were included in respondent’s motion for a stay pending appeal. As such, we may take judicial notice of those orders (see Musick v 330 Wythe Ave. Assoc., LLC, 41 AD3d 675, 676 [2007]; People v Comfort, 278 AD2d 872, 873 [2000]; Casson v Casson, 107 AD2d 342, 344 [1985], appeal dismissed 65 NY2d 637 [1985]).
. Again, the August 2014 order failed to define the conditions with which respondent was expected to comply and, therefore, respondent was without guidance as to what exactly “compliance” entailed.
. Neither of these orders included a requirement that respondent obtain her high school equivalency diploma.
. Even in the suspended judgment context of a termination of a parental rights case, “[t]he maximum duration of any term or condition of a suspended judgment is one year,” unless Family Court determines after a hearing that exceptional circumstances require a one-year extension (Family Ct Act § 1053 [b]).
. Overall, the delayed reporting practice appears problematic. It presents respondents with a “catch-22” situation in which they must agree to the delayed reporting structure or be subject to an immediate sentence. In instances where the respondent agrees to the delayed reporting arrangement, he or she may not be able to appeal from subsequent orders further adjourning the reporting date (see Matter of Amara AA. [Ashley AA.], 152 AD3d at 846 [2017]).
