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

1457
CAF 11-02003
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.


IN THE MATTER OF ELIZABETH STORELLI,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ANTHONY STORELLI, RESPONDENT-APPELLANT.


LEAH K. BOURNE, ROCHESTER, FOR RESPONDENT-APPELLANT.

WILLIAM K. TAYLOR, COUNTY ATTORNEY, ROCHESTER (ALECIA J. SPANO OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Monroe County (Joseph
G. Nesser, J.), entered September 15, 2011 in a proceeding pursuant to
Family Court Act article 4. The order, among other things, determined
that respondent was in willful violation of a child support order

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Monroe County, for a new hearing.

     Memorandum: Respondent appeals from an order determining that he
was in willful violation of a child support order and sentencing him
to six months’ incarceration. We note at the outset that respondent’s
appeal is not moot. “Inasmuch as enduring consequences potentially
flow from an order adjudicating a party in civil contempt, an appeal
from that order is not rendered moot simply because the resulting
prison sentence has already been served” (Matter of Bickwid v Deutsch,
87 NY2d 862, 863).

     We agree with respondent that he was denied his right to counsel
at the hearing before the Support Magistrate to determine whether he
was in willful violation of the support order. “Although a party may
proceed pro se, [a] court’s decision to permit a party who is entitled
to counsel to proceed pro se must be supported by a showing on the
record of a knowing, voluntary and intelligent waiver of the [right to
counsel] . . . In order for the court to ensure that the waiver of the
right to counsel is valid, the court must conduct a searching inquiry
of [the] party . . . [, and] there must be a showing that the party
was aware of the dangers and disadvantages of proceeding without
counsel” (Matter of Commissioner of Genesee County Dept. of Social
Servs. v Jones, 87 AD3d 1275, 1275-1276 [internal quotation marks
omitted]). The record establishes that respondent advised the Support
Magistrate that he had spoken to a person at the Public Defender’s
                                 -2-                         1457
                                                        CAF 11-02003

Office and expected an attorney to be at the hearing. The Support
Magistrate reminded respondent that he stated at the initial
appearance that he would be representing himself. When asked by the
Support Magistrate whether he was prepared to go forward with the
hearing, respondent replied “Well, I guess I am.” “ ‘Where, as here,
the court fails to conduct a searching inquiry, reversal is
required’ ” (id. at 1276). We therefore reverse the order and remit
the matter to Family Court for a new hearing.




Entered:   December 28, 2012                   Frances E. Cafarell
                                               Clerk of the Court
