Opinion
2013-11145 (Docket No. O-8281-13)
12-17-2014
In the Matter of Aranka MONOS, respondent, v. Joseph MONOS, appellant.
Helene Chowes, New York, N.Y., for appellant. Lisa Lewis, Brooklyn, N.Y., for respondent.
Helene Chowes, New York, N.Y., for appellant.
Lisa Lewis, Brooklyn, N.Y., for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and BETSY BARROS, JJ.
Opinion Appeal from an order of protection of the Family Court, Queens County (Dennis Lebwohl, J.), dated October 31, 2013. The order of protection directed the appellant, inter alia, to stay away from the petitioner until and including October 31, 2015.
ORDERED that the order of protection is affirmed, without costs or disbursements.
“In a family offense proceeding, the petitioner has the burden of establishing, by a ‘fair preponderance of the evidence,’ that the charged conduct was committed as alleged in the petition” (Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537 ). Here, contrary to the Family Court's determination, the petitioner did not prove, by a preponderance of the evidence, that the appellant committed the family offenses of criminal mischief in the first degree (Penal Law § 145.12 ), reckless endangerment in the second degree (Penal Law § 120.20 ; see generally People v. Davis, 72 N.Y.2d 32, 36, 530 N.Y.S.2d 529, 526 N.E.2d 20 ; Matter of Stanley F., 76 A.D.3d 1069, 1070, 908 N.Y.S.2d 127 ; cf. Matter of Kadeem W., 5 N.Y.3d 864, 808 N.Y.S.2d 130, 842 N.E.2d 15 ; Matter of George V., 231 A.D.2d 641, 647 N.Y.S.2d 968 ), or attempted assault in the third degree (Penal Law §§ 110.00, 120.00[1] ; see Matter of Callahan v. Picciano, 105 A.D.3d 953, 963 N.Y.S.2d 344 ; cf. Matter of Bessent v. Bessent, 113 A.D.3d 847, 979 N.Y.S.2d 543 ; see generally People v. McGee, 20 N.Y.3d 513, 519, 964 N.Y.S.2d 73, 986 N.E.2d 907 ; People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694 ).
However, as the Family Court properly concluded, the petitioner proved, by a preponderance of the evidence, that the appellant committed the family offense of menacing in the second degree. Contrary to the appellant's contention, under the particular circumstances in which the appellant threatened to use a fork against the petitioner, the fork constituted a dangerous instrument (see Penal Law § 10.00[13] ; People v. Crane, 156 A.D.2d 704, 705, 549 N.Y.S.2d 460 ; see generally People v. Carter, 53 N.Y.2d 113, 116, 440 N.Y.S.2d 607, 423 N.E.2d 30 ). The petitioner also met her burden of proof as to the family offense of harassment in the second degree (Penal Law § 240.26[1] ). In that respect, “[e]vidence of a genuine threat of physical harm backed by the ability to carry it out is sufficient to prove harassment in the second degree” (Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63 ). Upon the exercise of our factual review power, we conclude that the evidence adduced by the petitioner demonstrated that the order of protection issued by the Family Court was the appropriate disposition, since it was “reasonably necessary to provide meaningful protection ... and to eradicate the root of the family disturbance” (Matter of Mistretta v. Mistretta, 85 A.D.3d 1034, 1035, 926 N.Y.S.2d 582 ; see Matter of Mitchell v. Muhammed, 275 A.D.2d 783, 714 N.Y.S.2d 230 ; Matter of Braham v. Braham, 264 A.D.2d 418, 693 N.Y.S.2d 239 ; Merola v. Merola, 146 A.D.2d 611, 536 N.Y.S.2d 842 ).
The appellant's remaining contention does not require reversal (see Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 633, 975 N.Y.S.2d 894 ; Matter of Saleem v. Chaudhry, 110 A.D.3d 817, 818, 973 N.Y.S.2d 246 ).
Accordingly, we affirm the order of protection.