Opinion
10107
10-17-2019
In re MELISSA N., Petitioner-Respondent, v. JEFFREY B., Respondent-Appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Friedman, J.P., Renwick, Kapnick, Gesmer, Kern, JJ.
Order of fact-finding and disposition (one paper), Family Court, Bronx County (Valerie A. Pels, J.), entered on or about June 28, 2018, which, upon a fact-finding determination that respondent committed the family offense of harassment in the first degree, granted petitioner a two-year order of protection against respondent, unanimously modified, on the law and the facts, to vacate the finding of harassment in the first degree and substitute findings that respondent committed the family offenses of harassment in the second degree and disorderly conduct, and otherwise affirmed, without costs.
Family Court's determination that respondent's actions constituted the family offense of harassment in the first degree cannot be sustained, because that offense requires proof of a course of conduct or repeated commission of acts of harassment, while the petition alleged only a single incident (see Matter of Doris M. v. Yarenis P., 161 A.D.3d 502, 76 N.Y.S.3d 47 [1st Dept. 2018] ; Matter of Ryan Perrie M. v. Caden M., 153 A.D.3d 1200, 60 N.Y.S.3d 676 [1st Dept. 2017] ; see Family Court Act §§ 812[1] ; 832 and Penal Law § 240.25 ).
Although Family Court did not make any findings concerning the other family offenses alleged, remand is not required because "the record is sufficiently complete to allow this Court to make an independent factual review and draw its own conclusions" (Matter of Charlene R. v. Malachi R., 151 A.D.3d 482, 482, 53 N.Y.S.3d 530 [1st Dept. 2017] ; see Matter of Allen v. Black, 275 A.D.2d 207, 209, 712 N.Y.S.2d 487 [1st Dept. 2000] ). Upon such review, and accepting Family Court's credibility determinations (Matter of Chigusa Hosono D. v. Jason George D., 137 A.D.3d 631, 632, 28 N.Y.S.3d 49 [1st Dept. 2016] ), we find that petitioner established by a fair preponderance of the evidence that respondent committed acts constituting the family offenses of harassment in the second degree and disorderly conduct during a visit with their son in a public place ( Penal Law §§ 240.26 ; 240.20[2] and [3]; see Matter of Vanita UU. v. Mahender VV., 130 A.D.3d 1161, 1166, 12 N.Y.S.3d 661 [3d Dept. 2015], lv dismissed and denied 26 N.Y.3d 998, 19 N.Y.S.3d 219, 41 N.E.3d 78 [2015] ; Matter of Banks v. Opoku, 109 A.D.3d 470, 970 N.Y.S.2d 562 [2d Dept. 2013] ). We also agree that the issuance of a two-year order of protection in petitioner's favor was proper ( Family Ct Act §§ 842[a] ; [c] ).