Opinion
2015-04-21
In re SASHA R., Petitioner–Respondent, v. ALBERTO A., Respondent–Appellant.
Michael F. Dailey, Bronx, for appellant. Larry S. Bachner, Jamaica, for respondent.
Michael F. Dailey, Bronx, for appellant. Larry S. Bachner, Jamaica, for respondent.
TOM, J.P., FRIEDMAN, RENWICK, MOSKOWITZ, DeGRASSE, JJ.
Order of protection, Family Court, Bronx County (Jennifer S. Burtt, Referee), entered on or about January 30, 2014, which, upon a fact-finding determination that respondent committed the family offenses of harassment in the second degree and disorderly conduct, granted petitioner a one-year order of protection against respondent, unanimously modified, on the law, to vacate the finding of harassment in the second degree, and otherwise affirmed, without costs.
Although the order of protection has expired by its own terms, the appeal is not moot in light of the enduring consequences of the finding that respondent has committed family offenses against petitioner ( see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 671–672, 3 N.Y.S.3d 288, 26 N.E.3d 1143 [2015] ).
The findings that respondent committed acts in 2003 and 2009 that constituted harassment in the second degree were improperly predicated upon facts not alleged in the petition ( see Matter of Anderson v. Anderson, 25 A.D.2d 512, 267 N.Y.S.2d 75 [1st Dept.1966]; Matter of Salazar v. Melendez, 97 A.D.3d 754, 755, 948 N.Y.S.2d 673 [2d Dept.2012], lv. denied 20 N.Y.3d 852, 2012 WL 5845635 [2012] ). Accordingly, the finding that respondent committed the family offense of harassment in the second degree is vacated ( see e.g. Matter of Whittemore v. Lloyd, 266 A.D.2d 305, 698 N.Y.S.2d 275 [2d Dept.1999] ).
A fair preponderance of the evidence, however, supports the Referee's finding that respondent committed the family offense of disorderly conduct ( seeFamily Ct. Act § 832; Penal Law § 240.20[3] ). Petitioner testified that on two separate dates, while she was outside of her apartment building in a public place, respondent screamed obscenities and insults at her in an abusive manner ( see Matter of William M. v. Elba Q., 121 A.D.3d 489, 994 N.Y.S.2d 110 [1st Dept.2014] ). There is no basis for disturbing the Referee'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] ). The finding that respondent committed acts which constituted the family offense of disorderly conduct warranted the issuance of the order of protection ( see Matter of Banks v. Opoku, 109 A.D.3d 470, 970 N.Y.S.2d 562 [2d Dept.2013] ).
Petitioner's contention that the order of protection should be continued for another year is not properly before this Court because she did not appeal ( see Matter of Opportune N. v. Clarence N., 110 A.D.3d 430, 431, 972 N.Y.S.2d 245 [1st Dept.2013] ).