Summary
In Davenport v. Guardino (166 A.D.2d 349), the First Department addressed the validity of an intermittent sentence in the context of Family Court Act § 454.
Summary of this case from De Ruzzio v. De RuzzioOpinion
October 25, 1990
Appeal from the Family Court, New York County (Christine Gartner, Hearing Examiner, George L. Jurow, J.).
Family Court Act § 454 (3) (a) provides that the term imposed pursuant to an order of commitment, which shall not exceed six months, "may be served upon certain specified days or parts of days as the court may direct". This language describes a "sentence of intermittent imprisonment", defined as a "revocable sentence of imprisonment to be served on days or during certain periods of days, or both, specified by the court" (Penal Law § 85.00). In our opinion, this definition should be applied as a rule of practical construction (McKinney's Cons Laws of N.Y., Book 1, Statutes § 128). The term of commitment is measured from the day it is imposed to the date the term of the longest definite sentence for the offense would have expired rather than being calculated on the basis of the number of days actually spent in confinement (Penal Law § 85.00). The order of commitment appealed from, extending over approximately 90 weekends, therefore exceeds the maximum permissible term (People v. White, 83 A.D.2d 668).
As so limited, a civil commitment pursuant to Family Court Act § 454 (3) does not, as respondent asserts, constitute a "self-executing order * * * for future jail commitment" (Matter of Rogers v. Rogers, 77 A.D.2d 818). Rather it is a device employed upon a finding of a willful failure to fulfill past support obligations, nonpayment of which is merely prima facie evidence of willfulness (Family Ct Act § 454 [a]). The purpose is to compel timely payment of arrears during which the order of commitment remains suspended, and violation of its terms results only in revocation of the suspension and imposition of the remainder of the original sentence (Family Ct Act § 454 [a]). It is therefore akin to civil contempt where the punishment imposed is remedial and for the benefit of the complainant (Hicks v. Feiock, 485 U.S. 624, 631-632). We note that respondent's failure to seek otherwise available employment indicates a willful avoidance of his support obligation rather than an inability to pay (Matter of Cox v. Cox, 133 A.D.2d 828).
Respondent's other contentions have been examined and found to be without merit.
Concur — Milonas, J.P., Rosenberger, Asch, Kassal and Rubin, JJ.