Ontario County Department of Social Services v. Hinckley

226 A.D.2d 1126, 642 N.Y.S.2d 830, 1996 N.Y. App. Div. LEXIS 5666

Opinion

Order unanimously reversed on the law without costs and matter remitted to Ontario County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in revoking the suspension of the order of commitment (see, Family Ct Act § 455 [1]) without conducting a hearing. "[I]t is well settled that a deprivation of liberty must be preceded by a fair hearing (People ex rel. Silbert v Cohen, 36 AD2d 331, affd 29 NY2d 12; see also, Matter of Stagnar v Stagnar, 98 AD2d 983; Matter of Rogers v Rogers, 77 AD2d 818)” (Matter of Balya [Plouffe] v Riley, 212 AD2d 941, 943). "A hearing need not follow any particular form, but any meaningful hearing must, at least, consist of an adducement of proof coupled with an opportunity to rebut it” (Matter of Schwartz v Schwartz, 23 AD2d 204, 207). Before respondent is committed to jail, he must be afforded an "opportunity to be heard and to present witnesses” (Family Ct Act § 433 [a]) on the issue whether good cause existed to revoke the suspension of the sentence (see, Family Ct Act § 455 [1]; Matter of Balya [Plouffe] v Riley, supra, at 943). (Appeal from Order of Ontario County Family Court, Harvey, J.—Vacate Suspended Sentence.) Present—Green, J. P., Fallon, Wesley, Davis and Boehm, JJ.