Opinion
2019–05707 Docket No. O–9544/18
01-15-2020
In the Matter of Leroy S. HEFLEY, Respondent, v. Toni R. LUCK, Appellant.
Jennifer Hersh, Jamaica, NY, for appellant. Law and Mediation Offices of Helene Bernstein, PLLC, Brooklyn, NY, for respondent.
Jennifer Hersh, Jamaica, NY, for appellant.
Law and Mediation Offices of Helene Bernstein, PLLC, Brooklyn, NY, for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the order of fact-finding and disposition is modified, on the law, by deleting the provision thereof finding that Toni R. Luck committed the family offense of reckless endangerment in the second degree; as so modified, the order is affirmed, without costs or disbursements.
The petitioner and the appellant are half-siblings and co-owners of a multi-family home in Jamaica, Queens. In May 2018, the petitioner filed a family offense petition seeking an order of protection against the appellant, alleging that the appellant had committed certain family offenses. After a hearing, the Family Court found that the appellant had committed the family offenses of disorderly conduct, harassment in the second degree, and reckless endangerment in the second degree. The court directed the appellant to comply with the terms set forth in an order of protection, also dated May 1, 2019, for a period of two years. In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Estime v. Civil, 168 A.D.3d 936, 937, 90 N.Y.S.3d 557 ; Matter of Matheson v. Matheson, 140 A.D.3d 1068, 1069, 35 N.Y.S.3d 167 ). "Whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination of credibility issues is entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record" ( Matter of Estime v. Civil, 168 A.D.3d at 937, 90 N.Y.S.3d 557 ; see Matter of Lopez de Salmon v. Salmon, 150 A.D.3d 1121, 1122, 52 N.Y.S.3d 638 ). Here, a fair preponderance of the evidence adduced at the hearing supported the Family Court's determination that the appellant committed the family offenses of disorderly conduct and harassment in the second (see Family Ct. Act §§ 812[1] ; 832; Matter of Self v. Self, 167 A.D.3d 631, 632, 86 N.Y.S.3d 911 ; Matter of Kiani v. Kiani, 134 A.D.3d 1036, 1037–1038, 22 N.Y.S.3d 520 ).
However, contrary to the Family Court's finding, the petitioner failed 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 ; Matter of Porter v. Moore, 149 A.D.3d 1082, 1084, 53 N.Y.S.3d 174 ; Matter of Campbell v. Campbell, 123 A.D.3d 1123, 1124–1125, 1 N.Y.S.3d 219 ). While the court should not have found that the appellant committed the family offense of reckless endangerment in the second degree, the order of protection was nevertheless warranted based upon the court's findings with respect to the other two family offenses (see Matter of Kiani v. Kiani, 134 A.D.3d at 1038, 22 N.Y.S.3d 520 ; Matter of Campbell v. Campbell, 123 A.D.3d at 1125, 1 N.Y.S.3d 219 ).
The appellant's remaining contentions are without merit.
RIVERA, J.P., CHAMBERS, ROMAN and BRATHWAITE NELSON, JJ., concur.