Opinion
2019–02836 Docket No. F–11135–12/18F
01-08-2020
In the Matter of Thelma LOPEZ, Respondent, v. Addo WESSIN, Appellant.
Ian B. Tarasuk, Jamaica, NY, for appellant.
Ian B. Tarasuk, Jamaica, NY, for appellant.
WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, without costs or disbursements, and the sentence of probation is vacated.
The mother, the custodial parent of the parties' child, commenced this proceeding alleging that the father was in willful violation of an order of child support dated October 31, 2013. Following a hearing, the Support Magistrate issued an order of disposition finding that the father's failure to pay child support was willful. Thereafter, the Family Court issued three orders dated February 26, 2019: (1) an order confirming the Support Magistrate's order of disposition and finding that the father's failure to pay child support was willful; (2) an order committing the father to a term of incarceration of 90 days unless he paid a purge amount; and (3) an order directing that the father be placed on probation for a period of five years (hereinafter the order of probation). The father appeals from the order of probation.
Although the father failed to preserve his challenge to the legality of his sentence, a challenge to an unlawful sentence is not subject to the preservation rule (see People v. Samms, 95 N.Y.2d 52, 56, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ). Family Court Act § 454 expressly delineates the authority of the Family Court to impose either probation or a term of incarceration upon a finding of a willful violation of an order of support, not both (see Matter of Powers v. Powers, 86 N.Y.2d 63, 70–71, 629 N.Y.S.2d 984, 653 N.E.2d 1154 ; Family Court Act § 454[3] ). Thus, the Family Court was without authority to impose both a jail term and probation (see Family Court Act § 454[3] ; Matter of Heffner v. Jaskowiak, 132 A.D.3d 1418, 1418, 17 N.Y.S.3d 556 ). Since the father completed his 90–day term of incarceration, that portion of his sentence imposing probation must be vacated (see Matter of Heffner v. Jaskowiak, 132 A.D.3d at 1418, 17 N.Y.S.3d 556 ).
MASTRO, J.P., DUFFY, LASALLE and BRATHWAITE NELSON, JJ., concur.