Opinion
01-25-2017
In the Matter of Willie CRENSHAW, respondent, v. Chanize THORPE–CRENSHAW, appellant.
Karen A. Sferlazzo, Warwick, NY, for appellant. Dawn M. Shammas, Harrison, NY, attorney for the child.
Karen A. Sferlazzo, Warwick, NY, for appellant.
Dawn M. Shammas, Harrison, NY, attorney for the child.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
Appeal by the mother from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated August 24, 2015. The order, after a hearing, found that the mother committed the family offenses of harassment in the "first or second degree" and criminal mischief, and directed her to observe the conditions of an order of protection dated August 20, 2015.
ORDERED that the order dated August 24, 2015, is modified, on the facts, by deleting the provision thereof finding that the mother committed the family offense of criminal mischief; as so modified, the order is affirmed, without costs or disbursements.
In May 2015, the father commenced this family offense proceeding pursuant to Family Court Act article 8 against the mother. After a hearing, the Family Court found that the mother committed the family offenses of harassment in the "first or second degree" and criminal mischief, and directed her to observe the conditions of an order of protection dated August 20, 2015, which, inter alia, directed her to stay away from the father and the child Chyna C. (hereinafter the child) for a period of one year.
Initially, although the order of protection issued by the Family Court in connection with the father's family offense petition expired by its own terms on August 20, 2016, the appeal has not been rendered academic " ‘given the totality of the enduring legal and reputational consequences of the contested order of protection’ " (Matter of Pierre v. Dal, 142 A.D.3d 1021, 1022, 37 N.Y.S.3d 317, quoting Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 673, 3 N.Y.S.3d 288, 26 N.E.3d 1143 ; see Matter of Niyazova v. Shimunov, 134 A.D.3d 1122, 1122, 23 N.Y.S.3d 277 ).
In a family offense proceeding, "the allegations must be ‘supported by a fair preponderance of the evidence’ " (Matter of Jordan v. Verni, 139 A.D.3d 1067, 1068, 30 N.Y.S.3d 841, quoting Family Ct. Act § 832 ). " ‘The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record’ " (Matter of Jordan v. Verni, 139 A.D.3d at 1068, 30 N.Y.S.3d 841, quoting Matter of Jackson v. Idlett, 103 A.D.3d 723, 723, 959 N.Y.S.2d 706 ).
Here, while the evidence adduced at the hearing established, by a fair preponderance of the evidence, that the mother committed acts which constituted the family offenses of harassment in the first and second degrees (see Penal Law §§ 240.25, 240.26[1] ; Matter of Savas v. Bruen, 139 A.D.3d 737, 738, 31 N.Y.S.3d 149 ; Matter of Kiani v. Kiani, 134 A.D.3d 1036, 1037–1038, 22 N.Y.S.3d 520 ; Matter of Konstatine v. Konstatine, 107 A.D.3d 994, 994–995, 968 N.Y.S.2d 166 ; Matter of Panico v. Panico, 100 A.D.3d 907, 908, 955 N.Y.S.2d 125 ), the evidence failed to establish that the mother committed acts which constituted the family offense of criminal mischief (see Penal Law § 145.00[1] ). Accordingly, we exercise our factual review power to vacate the finding that the mother committed the family offense of criminal mischief (see Matter of Filipowski v. Sullivan–Tirelli, 139 A.D.3d 1063, 1064, 30 N.Y.S.3d 825 ).
Further, the evidence adduced at the hearing supported the issuance of the order of protection (see Matter of Monos v. Monos, 123 A.D.3d 931, 932, 999 N.Y.S.2d 131 ; Matter of Mistretta v. Mistretta, 85 A.D.3d 1034, 1035, 926 N.Y.S.2d 582 ).