Matter of Austin C. (Rasaan K.C.)

Opinion

Matter of Austin C. (Rasaan K.C.)

2026 NY Slip Op 04944

August 12, 2026

Appellate Division, Second Department

Ventura

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

In the Matter of Austin C. (Anonymous). Administration for Children's Services, petitioner-respondent; Rasaan K. C. (Anonymous), appellant; Krystle C. (Anonymous), nonparty-respondent. (Proceeding No. 1))

In the Matter of Alayna C. (Anonymous). Administration for Children's Services, petitioner-respondent; Rasaan K. C. (Anonymous), appellant; Krystle C. (Anonymous), nonparty-respondent. (Proceeding No. 2)

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2023-08239, 2023-08241, (Docket Nos. N-13481-21/23A, N-13481-21/23B, N-13482-21/23A, N-13482-21/23B, N-05367-23/23A, N-05368-23/23A)

Angela G. Iannacci, J.P.

Paul Wooten

Lourdes M. Ventura

Lisa S. Ottley, JJ.

Joan Iacono, Scarsdale, NY, for appellant.

Steven Banks, Corporation Counsel, New York, NY (Susan Paulson and Jennifer Lerner of counsel), for petitioner-respondent.

David Laniado, Cedarhurst, NY, for nonparty-respondent.

Robert E. Silverberg, Forest Hills, NY, attorney for the children.

APPEALS by the father, in related proceedings pursuant to Family Court Act article 10, from (1) an order of fact-finding of the Family Court (Joan L. Piccirillo, J.), dated August 9, 2023, and entered in Queens County, and (2) an order of commitment of the same court dated August 10, 2023. The order of fact-finding, after a hearing, found that the father willfully violated temporary orders of protection of the same court dated September 16, 2022, April 3, 2023, April 5, 2023, April 11, 2023, and June 6, 2023. The order of commitment, upon the order of fact-finding, insofar as appealed from, committed the father to the custody of the New York City Department of Correction for a period of 42 months.

Ventura, J. [*1]

DECISION & ORDER

These appeals concern related proceedings pursuant to Family Court Act article 10 in which the father was committed to the custody of the New York City Department of Correction for a period of 42 months upon the Family Court's finding that the father willfully violated several temporary orders of protection on 10 separate occasions. The father does not challenge the court's finding that he willfully violated the temporary orders of protection. Thus, the issue presented in these appeals is whether the court is authorized to impose consecutive six-month terms of incarceration for each willful violation of an order of protection issued under article 10 of the Family [*2]Court Act. We hold that it is.

I. Factual and Procedural Background

In December 2021, the Administration for Children's Services (hereinafter the agency) commenced two related proceedings pursuant to Family Court Act article 10, alleging that the father neglected the subject children. In September 2022, on consent of the parties, the Family Court granted the father an adjournment in contemplation of dismissal and issued a temporary order of protection dated September 16, 2022, inter alia, directing the father to refrain from assaulting, harassing, or committing any criminal offense against the mother and the children.

In April 2023, the agency filed a petition alleging that the father willfully violated the temporary order of protection dated September 16, 2022, and commenced additional proceedings pursuant to Family Court Act article 10, alleging that the father neglected the children with respect to his alleged violation of that temporary order of protection. Thereafter, the Family Court issued four additional temporary orders of protection dated April 3, 2023, April 5, 2023, April 11, 2023, and June 6, 2023, respectively, inter alia, directing the father to stay away from the mother and the children, with the exception of agency supervised parental access. In June 2023, the agency filed a petition alleging that the father willfully violated these additional temporary orders of protection.

After a hearing on both violation petitions, in an order of fact-finding dated August 9, 2023, the Family Court found that the father willfully violated the temporary orders of protection dated September 16, 2022, April 3, 2023, April 5, 2023, April 11, 2023, and June 6, 2023, on 10 separate occasions. In an order of commitment dated August 10, 2023, the court, inter alia, committed the father to the custody of the New York City Department of Correction for a period of 42 months. The court rejected the father's argument that, pursuant to Judiciary Law § 751, the court only had the authority to sentence him to 30 days in jail for each willful violation. The court determined that it had the authority to impose 10 consecutive six-month terms of incarceration based on its finding that the father committed 10 separate willful violations, which would amount to a maximum permissible sentence of 60 months in jail, and imposed the 42-month term of incarceration. The father appeals, asserting that the maximum permissible sentence was a total of 300 days in jail.

II. Legal Analysis

Pursuant to Family Court Act § 156, "[t]he provisions of the judiciary law relating to civil and criminal contempts shall apply to the family court in any proceeding in which it has jurisdiction under this act or any other law . . . unless a specific punishment or other remedy for such violation is provided in this act or any other law." Pursuant to Section 751 of the Judiciary Law, if a person is found to be in criminal contempt for willfully violating a court order (see Judiciary Law § 750[A][3]), the court may impose a maximum term of 30 days in jail (see id. § 751[1]).

Article 10 of the Family Court Act governs child protective proceedings, the purpose of which is "to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being" (Family Ct Act § 1011). Sections 1054 and 1057 of the Family Court Act authorize the issuance of orders of supervision as part of dispositional orders in article 10 proceedings, while section 1056 of the Family Court Act authorizes the issuance of orders of protection. Section 1029 authorizes the issuance of temporary orders of protection. Pursuant to Family Court Act § 1072, if a parent or other person legally responsible for a child's care

"violate[s] the order of supervision willfully and without just cause, the court may: (a) revoke the order of supervision or of protection and enter any order that might have been made at the time the order of supervision or of protection was made, or (b) commit the parent or other person who willfully and without just cause violated the order to jail for a term not to exceed six months" (emphasis added).

The father argues that the Family Court could only impose a maximum term of 30 days in jail for each willful violation pursuant to Judiciary Law § 751 because Section 1072 of the Family Court Act does not provide a "specific punishment or other remedy" for a violation of an order of protection, as opposed to an order of supervision, issued under article 10 of the Family Court Act (Family Ct Act § 156).

Section 1072 of the Family Court Act was amended in 2006 (L 2006, ch 437, § 6, eff July 26, 2006). Prior to the 2006 amendments, Section 1072 only discussed the remedies available upon a finding that a parent or person legally responsible for a child's care willfully violated an order of supervision or an order of protection, namely revocation of those orders and entry of another [*3]authorized order or commitment to jail for a term not to exceed six months (see Family Ct Act former § 1072). The 2006 amendments changed the first sentence of Section 1072 so as to add a provision mandating that, where a motion is made alleging that the subject of an unexpired order of supervision had violated the terms of such order, the period of the order of supervision would be tolled pending disposition of the motion. The reference in that sentence to the individual's violation of an order of protection was removed.

Nonetheless, the 2006 amendments did not remove all references to orders of protection from Section 1072. As noted above, Section 1072 states that, upon a finding that an "order of supervision" was willfully violated, a court may "revoke the order of supervision or of protection and enter any order that might have been made at the time the order of supervision or of protection was made" (Family Ct Act § 1072[a] [emphasis added]). It then authorizes commitment of up to six months for violation of "the order," without specifying the type of order to which it refers (id. § 1072[b]). One explanation for this anomaly is that the Legislature did not intend for the mandatory tolling provision to apply to orders of protection; thus, the reference to orders of protection was removed. The Legislature may simply have overlooked the need, in order to make that portion of Section 1072 more clear, to include a reference to such orders of protection in the sentence pertaining to the remedies available to the Family Court. There is nothing in the legislative history which would suggest any intent on the part of the Legislature to prohibit the court from imposing a six-month term of incarceration for a violation of an order of protection issued under article 10 of the Family Court Act (see Bill Jacket, L 2006, ch 437).

Indeed, despite the 2006 amendments to Section 1072, courts throughout New York State have continued to impose six-month terms of incarceration for willful violations of orders of protection issued under article 10 of the Family Court Act (see e.g. Matter of Angel P.H. [Angel P.Q.], 223 AD3d 808; Matter of Omari J.T. [Oshane T.], 216 AD3d 1102; Matter of Bryce L. [David B.], 184 AD3d 563; Matter of Robert K.S. [John S.], 121 AD3d 908; Matter of Iceniar R. [Frankie R.], 73 AD3d 784; Matter of Whitney B., 57 AD3d 771), and the Appellate Division, Third Department has explicitly stated that, pursuant to Family Court Act § 1072, the court may impose a six-month term of incarceration for a violation of an order of protection issued under article 10 of the Family Court Act (see Matter of Cori XX. [Michael XX.-Katherine XX.], 155 AD3d 113, 116; Matter of Katie II. [John II.], 80 AD3d 824, 826; see also Matter of Angel P.H. [Angel P.Q.], 223 AD3d at 810 ["There is generally no right to a jury trial in violation proceedings because the maximum sentence for each willful violation is only six months" (citing Family Ct Act §§ 846-a and 1072)]).

Significantly, several years after Section 1072 was amended, amendments were made to Section 846-a of the Family Court Act, pertaining to remedies for willful violations of orders of protection in family offense proceedings commenced under Family Court Act article 8 (see L 2013, ch 1, § 5, eff March 16, 2013). A proceeding under Family Court Act article 8 "is [commenced] for the purpose of attempting to stop the violence, end the family disruption and obtain protection" (Family Ct Act § 812[2][b]).

Whereas former Family Court Act § 846-a, in relevant part, set forth the remedies for a willful violation of "any lawful order issued under this article" (emphasis added), including commitment to a term of up to six months in jail, the current version permits such a remedy for a willful failure to obey "any lawful order issued under this article or an order of protection or temporary order of protection issued pursuant to this act," i.e., the Family Court Act, which includes article 10 (Family Ct Act § 846-a [emphasis added]; see L 2013, ch 1, § 5).

Therefore, while Section 846-a is contained in article 8 of the Family Court Act, and the instant proceeding was commenced pursuant to article 10, the plain language of Section 846-a indicates that the court may impose a six-month term of incarceration upon a finding that an individual willfully violated any order of protection or temporary order of protection issued pursuant to the Family Court Act, regardless of whether the order was issued in an article 8 proceeding (see id. §§ 828, 842) or an article 10 proceeding (see id. §§ 1029, 1056). In other words, contrary to the father's contentions, an individual who willfully violates an order of protection issued under article 10 may be subjected to the same term of incarceration as an individual who willfully violates an order of protection issued under article 8. From a policy perspective, an individual who violates an order of protection issued under article 10 should not be subjected to a lesser punishment than an individual who violates an order of protection issued under article 8. An order of protection issued under either article seeks to effectuate "the policy behind orders of protection, namely to prevent physical harm" (Matter of Columbia County Support Collection Unit v Risley, 27 NY3d 758, 763). [*4]Indeed, regardless of whether an order of protection is issued under article 8 or article 10, the type of conduct that a court may prohibit is virtually identical (see Family Ct Act §§ 842, 1056).

Finally, the Family Court was permitted to impose the six-month terms of incarceration consecutively. The Court of Appeals has held that the Family Court is authorized to impose consecutive six-month periods of incarcerations for separate, multiple violations of an order of protection issued under article 8 of the Family Court Act (see Matter of Walker v Walker, 86 NY2d 624, 628-629). The Court of Appeals has similarly held that consecutive six-month terms of incarceration may be imposed in article 4 proceedings upon a finding that a respondent has willfully failed to obey an order of support (see Family Ct Act § 454[3][a]; Matter of Columbia County Support Collection Unit v Risley, 27 NY3d at 763-764). The judicial authority to impose periods of incarceration as prescribed in Sections 846-a and 1072 of the Family Court Act "was intended to prevent violations, deter further violations and vigorously and comprehensively enforce Family Court orders" (Matter of Columbia County Support Collection Unit v Risley, 27 NY3d at 763-764). Even though these statutes do not specifically authorize consecutive sentences, the Legislature could have explicitly circumscribed judicial authority to impose consecutive sentences under these statutes if it did not intend courts to possess such authority (see Matter of Walker v Walker, 86 NY2d at 629). Thus, the court here was authorized to impose consecutive six-month terms of incarceration for each willful violation (see id.).

III. Conclusion

Sections 846-a and 1072 of the Family Court Act provide a "specific punishment or other remedy" for a willful violation of an order of protection issued under article 10 of the Family Court Act (Family Ct Act § 156). Accordingly, Judiciary Law § 751 does not apply, and the Family Court was authorized to commit the father to jail for a period of 42 months upon the court's finding that, on 10 separate occasions, the father violated temporary orders of protection issued under article 10 of the Family Court Act (see Family Ct Act §§ 846-a, 1072[b]; Matter of Walker v Walker, 86 NY2d at 628-629; Matter of Angel P.H. [Angel P.Q.], 223 AD3d at 810).

The appeal from the order of fact-finding is dismissed, as the order of fact-finding was superseded by the order of commitment, and the order of commitment is affirmed insofar as appealed from.

IANNACCI, J.P., WOOTEN, and OTTLEY, JJ., concur.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of commitment; and it is further,

ORDERED that the order of commitment is affirmed insofar as appealed from, without costs or disbursements.

ENTER:

Darrell M. Joseph

Clerk of the Court