Respondent on April 12, 1994 filed a motion returnable April 27, 1994 seeking reargument of the dispositional order dated April 7, 1994. In his motion respondent relies on recent appellate authority, to wit, Matter of Vitti v Vitti ( 202 A.D.2d 917 [3d Dept 1994]), which holds that Family Court Act article 8 does not authorize imposition of consecutive commitments. The Third Department stated that in its view this statute, onits face, prohibits such commitments.
Section 846-a permits commitment of respondent to jail for a term not to exceed six months if the court is satisfied by competent proof that respondent has willfully failed to obey any such order. Respondent urges us to interpret that provision as limiting the maximum punishment for violation of an order of protection to six months no matter how many separate violations are found or how many petitions are filed (see, Matter of Vitti v. Vitti, 202 A.D.2d 917). Were we to accept that interpretation, however, a respondent would be immune from further punishment after being sentenced to six months for a willful violation of an order of protection, unless the petitioner, upon the initial violation, obtained an amended order of protection so that any subsequent violation would be of a different enforceable order of protection. The statutory language does not compel that result, which elevates form over substance. It also significantly undermines the ability of Family Court to punish those who repeatedly commit family offenses (see, Carmille A. v. David A., 162 Misc.2d 22). Thus, we conclude that consecutive sentences of up to six months each for separate violations of an order of protection are not prohibited.
Rejecting the defendant's argument that the statute penalizing the violation of a protective order "allow[ed] a maximum of six months' incarceration only, regardless of the number of willful acts of disobedience against the same order," the Court of Appeals observed that, under the defendant's argument: In support of his argument, Petitioner cites Vitti v. Vitti, 202 A.D.2d 917, 609 N.Y.S.2d 686 (N.Y.App.Div. 1994), a New York case holding that, where a husband made a series of phone calls in violation of a protective order, two consecutive six-month incarcerations were not valid under the Family Court Act because the Act, on its face, prohibited consecutive sentences. Id. at 688.
We have considered respondents' remaining contentions with respect to the fact-finding hearing and conclude that they are without merit. Respondents failed to preserve for our review their contentions concerning the informal nature of the dispositional hearing (see, Matter of April B., 242 A.D.2d 926, 927; Matter of Vitti v. Vitti, 202 A.D.2d 917, 919; Matter of Michelle S., 195 A.D.2d 721, 722). PRESENT: PINE, J. P., HAYES, WISNER, SCUDDER AND BALIO, JJ.
The Law Guardian has advised us that respondent has completed serving his six-month jail term. Thus, his argument regarding the appropriateness of the sentence is moot ( see, Matter of Vitti v. Vitti, 202 A.D.2d 917, 920). Mikoll, J. P., Mercure, Yesawich Jr. and Peters, JJ., concur.
Respondent claims that she was prejudiced by Family Court's rulings which permitted witnesses to be called out of order and permitted lengthy breaks in the hearing, which lasted five months, and made rulings that were biased in favor of petitioner. In the absence of timely objections during the hearing, the claimed errors are not preserved for appellate review ( see, Matter of Kagels v Kagels, 209 AD2d 1020, 1021; Matter of Vitti v Vitti, 202 AD2d 917, 919). In any event, the rulings involved Family Court's exercise of discretion in conducting the hearing ( see, e.g., Matter of Patricia L. v Steven L., 119 AD2d 221, 226), and there is no support in the record for respondent's claim of bias.
The appellant contends that he is not a proper party to this child protective proceeding because he was not a person "legally responsible" for his sister Mary Alice V., pursuant to Family Court Act § 1012 (a), during the period he allegedly sexually abused her. However, the appellant's contention is not preserved for appellate review because it was never raised in the proceeding ( see, Matter of Kagels v Kagels, 209 A.D.2d 1020; Matter of Vitti v Vitti., 202 A.D.2d 917, 919). In any event, the appellant's contention is without merit.
She claims that the evidence revealed that she satisfied this criterion. Defendant's arguments on this point were, however, not raised before Supreme Court and are, therefore, not properly preserved for appellate review ( see, Small Bus. Admin. v Mills, 203 A.D.2d 654; Matter of Vitti v Vitti, 202 A.D.2d 917). We have considered and rejected as unpersuasive the parties' remaining arguments, including any procedural objections raised on this appeal.
On appeal, the appellant argues that the evidence was insufficient to support the court's finding. The appeal from the order is academic, however, as the appellant has served the period of incarceration, and there is no ameliorative action for this Court to take (see, e.g., Matter of Vitti v. Vitti, 202 A.D.2d 917, 920; cf., Matter of Zapata v Middleton, 197 A.D.2d 526; Matter of Madison County Support Collection Unit v. Drennan, 156 A.D.2d 883). Although the appeal is academic, we note that the Family Court erred in imposing an aggregate sentence of 255 days as Family Court Act § 846-a prohibits, on its face, the imposition of a sentence in excess of six months imprisonment for violations of the same order of protection (see, Matter of Arguinzoni v. Arguinzoni, 210 A.D.2d 324; Matter of Vitti v. Vitti, supra; cf., Matter of Walker v Walker, 209 A.D.2d 924). The appellant also appeals from an order entered March 26, 1993, which extended an existing order of protection until February 17, 1994.
Family Court Act § 846-a prohibits, on its face, the imposition of a sentence in excess of six months imprisonment. Accordingly, we direct that the terms of imprisonment imposed upon the appellant run concurrently (see, Matter of Vitti v Vitti, 202 A.D.2d 917). The appellant's remaining contentions are without merit.