Opinion
215 CAF 21-01602
03-24-2023
In the Matter of Shari B. MCCASLIN, Petitioner-Respondent, v. David E. BECK, Respondent-Appellant.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: Respondent appeals from an order of protection issued in a proceeding pursuant to Family Court Act article 8 upon a finding that he committed an unspecified family offense against petitioner, the mother of two of his children. At the fact-finding hearing, petitioner testified that respondent was verbally abusive to her when talking to her by degrading her, accusing her of not keeping a clean home, and blaming her for his poor relationship with his daughter.
Initially, we note that Family Court failed to set forth its essential findings of fact, and also failed to specify the family offense or offenses upon which the order of protection was predicated (see Matter of Benson v. Smith , 170 A.D.3d 1640, 1641, 94 N.Y.S.3d 901 [4th Dept. 2019] ; Matter of White v. Byrd-McGuire , 163 A.D.3d 1413, 1414, 81 N.Y.S.3d 692 [4th Dept. 2018] ). Remittal is not necessary, however, because the record is sufficient for this Court to conduct an independent review of the evidence (see White , 163 A.D.3d at 1414, 81 N.Y.S.3d 692 ; Matter of Telles v. Dewind , 140 A.D.3d 1701, 1701, 34 N.Y.S.3d 299 [4th Dept. 2016] ). Upon that review, we conclude that the evidence presented at the fact-finding hearing failed to establish by a preponderance of the evidence that respondent committed the family offense of harassment in the first degree ( Penal Law § 240.25 ) or harassment in the second degree under any subdivision (§ 240.26) (see Family Ct Act §§ 812 [1] ; 832; see generally Matter of Robinson v. Robinson , 158 A.D.3d 1077, 1078, 69 N.Y.S.3d 907 [4th Dept. 2018] ).