           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

287
CAF 10-01473
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF CATHERINE MYERS,
PETITIONER-RESPONDENT,

                      V                              MEMORANDUM AND ORDER

RICHARD J. TRACY, RESPONDENT-APPELLANT.


SUSAN P. REINECKE, CLARENCE, FOR RESPONDENT-APPELLANT.

PAUL R. DIDIO, BUFFALO, FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Erie County (Patricia
A. Maxwell, J.), entered June 1, 2010 in a proceeding pursuant to
Family Court Act article 4. The order confirmed the determination of
the Support Magistrate.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

      Memorandum: Respondent father appeals from an order confirming
the Support Magistrate’s determination that he willfully failed to
obey a child support order and imposing a suspended sentence of 90
days in jail. The Support Magistrate’s finding of a willful violation
of the support order was based upon admissions made by the father in
open court when the parties entered into a settlement agreement.
Because the father consented to the order confirming the Support
Magistrate’s determination, including his recommended sentence, the
appeal must be dismissed. It is well settled that “[n]o appeal lies
from an order entered by consent upon the stipulation of the appealing
party” (Matter of Starz v Tissiera, 206 AD2d 432; see Matter of Adney
v Morton, 68 AD3d 1742; Matter of Culton v Culton, 2 AD3d 1446). In
any event, we note that the father’s sole contention on appeal that he
was denied effective assistance of counsel is based largely on matters
dehors the record and thus should be raised by way of a motion to
vacate the order in Family Court (see generally Matter of Commissioner
of Social Servs. of Rensselaer County [Faresta] v Faresta, 11 AD3d
750).




Entered:    March 16, 2012                      Frances E. Cafarell
                                                Clerk of the Court
