Opinion
CAF 01-02360
March 21, 2003.
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.
CHARLES J. GREENBERG, BUFFALO, FOR RESPONDENT-APPELLANT.
PRESENT: HURLBUTT, J.P., KEHOE, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
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 [a]; Matter of Powers v. Powers, 86 N.Y.2d 63, 69; Matter of Fallon v. Fallon, 286 A.D.2d 389), and the burden therefore shifted to respondent to rebut that prima facie showing of willfulness (see Powers, 86 N.Y.2d 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 A.D.2d 389; Matter of Nieves v. Gordon, 264 A.D.2d 445). Respondent's contentions concerning the penalty of incarceration are moot because respondent has served his sentence (see generally Matter of Johnson v. Boone, 289 A.D.2d 938; cf. Matter of Bickwid v. Deutsch, 87 N.Y.2d 862). Respondent received effective assistance of counsel (see Matter of Amanda L., 302 A.D.2d 1004 [Feb. 7, 2003]; Matter of Wright v. Lyons, 288 A.D.2d 481, 482). We have considered respondent's remaining contention and conclude that it is without merit.