Opinion
8284
01-31-2019
In re SHIRLEY D.-A., Petitioner–Respondent, v. GREGORY D.-A., Respondent–Appellant.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Larry S. Bachner, New York, for respondent.
Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Larry S. Bachner, New York, for respondent.
Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
As an initial matter, respondent correctly argues that the expiration of the order of protection does not render his appeal moot, given the "significant enduring consequences" of such an order ( Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 671, 3 N.Y.S.3d 288, 26 N.E.3d 1143 [2015] ; Matter of Charlene R. v. Malachi R., 151 A.D.3d 482, 53 N.Y.S.3d 530 [1st Dept. 2017] ).
Petitioner proved by a fair preponderance of the evidence that respondent, her son, committed the family offenses of harassment in the second degree ( Penal Law § 240.26[1] ) and menacing in the third degree against her ( Penal Law § 120.15 ). The Referee credited petitioner's testimony, and his determination is entitled to great deference and is supported by the record (see Matter of Erin C. v. Walid M., 165 A.D.3d 547, 548, 87 N.Y.S.3d 162 [1st Dept. 2018] ). Petitioner testified that she moved out of her apartment and into her daughter's apartment in part due to fear of living with respondent who was living in her apartment. She stated that, on November 15, 2017, when she returned to her apartment, respondent made numerous threatening statements and gestures toward her while following her from room to room. Based on the surrounding circumstances, these actions and statements indicate that respondent was intending to harass, annoy or alarm petitioner, and that he intended to place her in fear of physical injury. Furthermore, the Referee had a sound basis for excluding respondent from petitioner's apartment beginning in January 2018 (see Family Ct. Act § 842[k] ; Matter of V.C. v. H.C., 257 A.D.2d 27, 32, 689 N.Y.S.2d 447 [1st Dept. 1999] ).
Based on the existing record, respondent was afforded meaningful representation. Counsel actively participated throughout the entire hearing, timely objected to petitioner's testimony, cross-examined petitioner, and made a coherent argument during summations (see Matter of Devin M. [Margaret W.], 119 A.D.3d 435, 437, 989 N.Y.S.2d 35 [1st Dept. 2014] ).
We have considered respondent's remaining contentions and find them unavailing.