Opinion
10374
11-19-2019
In re RAQUELINA V., Petitioner–Appellant, v. CRISTIAN J.N., Respondent–Respondent.
Geoffrey P. Berman, Larchmont, for appellant. Law and Mediation Office of Helene Bernstein, PLLC, Brooklyn (Helene Bernstein of counsel), for respondent.
Geoffrey P. Berman, Larchmont, for appellant.
Law and Mediation Office of Helene Bernstein, PLLC, Brooklyn (Helene Bernstein of counsel), for respondent.
Friedman, J.P., Renwick, Richter, Mazzarelli, Oing, JJ.
Order, Family Court, New York County (J. Machelle Sweeting, J.), entered on or about July 9, 2018, which, after a fact-finding hearing, dismissed with prejudice the petition seeking an order of protection against respondent, unanimously affirmed, without costs.
Petitioner failed to establish by a preponderance of the evidence that respondent had committed acts constituting disorderly conduct or harassment in the second degree (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ; Penal Law §§ 240.20 and 240.26[3] ). Petitioner's hearing testimony plainly contradicted the facts alleged in the family offense petition.
Even crediting petitioner's testimony, the offense of disorderly conduct was necessarily dismissed since there was no evidence that respondent intended to cause a public inconvenience, annoyance or alarm, or recklessly created such a risk, by threatening her over the telephone (see Matter of Janice M. v. Terrance J., 96 A.D.3d 482, 483, 945 N.Y.S.2d 693 [1st Dept. 2012] ). As for the offense of harassment in the second degree, petitioner failed to adduce evidence that would support a finding that respondent engaged in a course of conduct or repeatedly committed acts that alarmed or seriously annoyed petitioner and that served no legitimate purpose (see Penal Law § 240.26[3] ). There exists no basis to disturb the court's credibility determinations (see Matter of Peter G v. Karleen K., 51 A.D.3d 541, 856 N.Y.S.2d 859 [1st Dept. 2008] ).