Shea v. Hoskins

12 A.D.3d 1191, 785 N.Y.S.2d 255, 2004 N.Y. App. Div. LEXIS 14028

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2004
• Status: Published

Opinion

Appeal from an order of the Family Court, Ontario County (James R. Harvey, J.), entered March 8, 2004 in a proceeding pursuant to Family Ct Act article 4. The order adjudged that respondent willfully failed to obey a support order and sentenced him to a term of incarceration of six months.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent appeals from an order in a proceeding under article 4 of the Family Ct Act. The order adjudged that respondent willfully failed to obey a support order and sentenced him to a term of incarceration of six months. Respondent contends that the support magistrate deprived him of his right to counsel when she questioned him at the first appearance and obtained an “admission” that she used against him in her findings of fact. We disagree. The Family Ct Act provides for assigned counsel in support proceedings and requires that, “[wjhen such person first appears in court, the judge shall advise such person before proceeding that he has the right to be represented by counsel” (Family Ct Act § 262 [a]). Here, the support magistrate provided respondent with assigned counsel at the first appearance, and respondent was represented at the subsequent hearing. The support magistrate found that respondent failed to pay support while he was able to pay other bills. The evidence, including the alleged admission, was adduced at the hearing, not at the initial appearance as respondent contends. Consequently, we affirm. Present—Pigott, Jr., RJ., Pine, Scudder, Kehoe and Lawton, JJ.