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Leslie v. Rodriguez

303 A.D.2d 1016 Court N.Y. App. Div. Decision date 2003-03-21 English

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p. 1016
In the Matter of Rosalie Leslie, Respondent, v Jose R. Rodriguez, Appellant.
[757 NYS2d 190]

—Appeal from an order of Family Court, Erie County (Szczur, J.), entered May 17, 2001, which committed respondent to jail for a period of 60 days.

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

Memorandum: Respondent contends that Family Court erred in denying his objections to the Hearing Examiner’s order finding him to be in willful violation of an order of support and that the court therefore erred in committing him to jail for a period of 60 days. We reject that contention. Respondent’s undisputed failure to comply with the order of support constituted prima facie evidence of a willful violation of that order (see Family Ct Act § 454 [3] [a]; Matter of Powers v Powers, 86 NY2d 63 , 69 [1995]; Matter of Fallon v Fallon, 286 AD2d 389 [2001] ), and the burden therefore shifted to respondent to rebut that prima facie showing of willfulness (see Powers, 86 NY2d

p. 1017
at 69 ). Although respondent testified that he was terminated from his employment, it is undisputed that he collected unemployment within two months after that termination yet failed to pay any support. Moreover, the ability to pay support includes the ability to find employment, and respondent failed to show that he made a reasonable effort to find other employment (see Fallon, 286 AD2d 389 [2001]; Matter of Nieves v Gordon, 264 AD2d 445 [1999]). Respondent’s contentions concerning the penalty of incarceration are moot because respondent has served his sentence (see generally Matter of Johnson v Boone, 289 AD2d 938 [2001]; cf. Matter ofBickwid v Deutsch, 87 NY2d 862 [1995]). Respondent received effective assistance of counsel (see Matter of Amanda L., 302 AD2d 1004 [2003]; Matter of Wright v Lyons, 288 AD2d 481 , 482 [2001]). We have considered respondent’s remaining contention and conclude that, it is without merit. Present — Hurlbutt, J.P., Kehoe, Gorski, Lawton and Hayes, JJ.

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