Opinion
12-31-2014
In the Matter of Pamela CAMPBELL, respondent, v. O'Neil CAMPBELL, appellant.
Placidus Aguwa, Jamaica, N.Y., for appellant. Jaime Bower, Jamaica, N.Y., for respondent.
Placidus Aguwa, Jamaica, N.Y., for appellant.
Jaime Bower, Jamaica, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Appeal from a final order of protection of the Family Court, Queens County (Dennis Lebwohl, J.), dated February 6, 2014. The order, after a fact-finding hearing and upon a finding that O'Neil Campbell committed family offenses within the meaning of Family Court Act § 812, directed him to stay away from the petitioner and observe other stated conditions of behavior for one year.
ORDERED that the final order of protection is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against her adult son, the appellant, who had been living with her since he was a child. After a hearing, the Family Court found that the appellant had committed the family offenses of menacing in the third degree, harassment in the second degree, assault in the third degree, reckless endangerment in the second degree, and criminal mischief in the fourth degree. Based on those findings, the court entered a final order of protection against the appellant with a duration of one year. He now appeals.
A family offense must be established by a "fair preponderance of the evidence" ( Family Ct. Act § 832 ; see Matter of Maiorino v. Maiorino, 107 A.D.3d 717, 965 N.Y.S.2d 885 ; Matter of Drury v. Drury, 90 A.D.3d 754, 934 N.Y.S.2d 337 ). The determination of whether a family offense was committed is generally a factual issue to be resolved by the Family Court (see Maiorino v. Maiorino, 107 A.D.3d at 717, 965 N.Y.S.2d 885 ; Matter of Jackson v. Idlett, 103 A.D.3d 723, 723, 959 N.Y.S.2d 706 ; Matter of Kanterakis v. Kanterakis, 102 A.D.3d 784, 785, 957 N.Y.S.2d 890 ). The court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Maiorino v. Maiorino, 107 A.D.3d at 717, 965 N.Y.S.2d 885 ).
Here, a fair preponderance of the credible evidence adduced at the fact-finding hearing supported a finding that the appellant committed the family offenses of menacing in the third degree (see Penal Law § 120.15 ; Matter of Melind M. v. Joseph P., 95 A.D.3d 553, 555, 944 N.Y.S.2d 82 ), and harassment in the second degree (see Penal Law § 240.26[3] ; Matter of Jackson v. Idlett, 103 A.D.3d at 723, 959 N.Y.S.2d 706 ; Matter of Amber JJ. v. Michael KK., 82 A.D.3d 1558, 1560, 920 N.Y.S.2d 448 ). However, contrary to the Family Court's finding, the evidence proffered at the hearing was insufficient to establish by a fair preponderance of the evidence that the appellant committed the family offense of assault in the third degree. A person is guilty of assault in the third degree when "[w]ith intent to cause physical injury to another person, he [or she] causes such injury to such person" ( Penal Law § 120.00[1] ). "Physical injury" is defined as "impairment of physical condition or substantial pain" ( Penal Law § 10.00[9] ). Here, no evidence was presented that petitioner's physical condition was impaired, and there was insufficient evidence to establish that she suffered substantial pain (see Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 ; Matter of Spooner–Boyke v. Charles, 121 A.D.3d 1120, 995 N.Y.S.2d 583 ; People v. Boley, 106 A.D.3d 753, 753–754, 963 N.Y.S.2d 726 ; Matter of Mary Ellen P. v. John R., 278 A.D.2d 750, 752–753, 718 N.Y.S.2d 442 ).
Further, the evidence proffered at the hearing was insufficient to establish by a fair preponderance of the evidence that the appellant committed the family offense of reckless endangerment in the second degree, since the appellant's actions did not create a substantial risk of serious physical injury (see Penal Law § 120.20 ; cf. Matter of Nakia C. v. Johnny F.R., 112 A.D.3d 538, 539, 978 N.Y.S.2d 129 ), or the family offense of criminal mischief in the fourth degree, as there was no proof of property damage (see Penal Law § 145.00 ; People v. Hills, 95 N.Y.2d 947, 949, 722 N.Y.S.2d 460, 745 N.E.2d 379 ; People v. Collins, 288 A.D.2d 756, 758, 733 N.Y.S.2d 289 ).
However, under the circumstances of this case, we conclude that the terms and duration of the order of protection are nevertheless appropriate.
Contrary to the parties' contentions, under the circumstances of this case, the Family Court's decision not to hold a dispositional hearing prior to issuing the final order of protection does not require reversal (see Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 632–633, 975 N.Y.S.2d 894 ; Matter of Kaur v. Singh, 101 A.D.3d 877, 878, 955 N.Y.S.2d 633 ; Matter of Sperling v. Sperling, 96 A.D.3d 1067, 1067–1068, 946 N.Y.S.2d 877 ; Matter of Sblendorio v. D'Agostino, 60 A.D.3d 773, 773–774, 877 N.Y.S.2d 92 ; Matter of Quintana v. Quintana, 237 A.D.2d 130, 654 N.Y.S.2d 27 ). The appellant's contention that the court improperly threatened a less favorable disposition if he insisted upon such a hearing is not supported by the record.