Opinion
2011-12-13
In the Matter of Wendell C. DRURY, respondent, v. Linda M. DRURY, appellant.
Douglas A. Durnin, Massapequa, N.Y., for appellant.
In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals from an order of protection of the Family Court, Nassau County (Eisman, J.), dated March 28, 2011, which, after a fact-finding hearing and upon, in effect, a finding that she had committed certain family offenses within the meaning of Family Court Act § 812, directed her, inter alia, to stay away from the husband and his residence and place of employment and refrain from communicating with him for a period of three years until and including March 27, 2014.
ORDERED that the order of protection is modified, on the law, by deleting the provision thereof directing that it shall remain in effect until and including March 27, 2014, and substituting therefor a provision directing that the order of protection shall remain in effect until and including March 27, 2013; as so modified, the order of protection is affirmed, without costs or disbursements.
The Family Court's determination as to whether a respondent committed acts constituting a cognizable family offense is a factual issue for the Family Court to resolve, and “[a] family offense must be established by a fair preponderance of the evidence” ( Matter of Thomas v. Thomas, 72 A.D.3d 834, 835, 898 N.Y.S.2d 495; see Family Ct. Act § 832).
The Family Court failed to state on the record the facts that it deemed essential to its determination to grant the petition for an order of protection ( see CPLR 4213[b]; Matter of Jose L.I., 46 N.Y.2d 1024, 1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059; Matter of Smith v. Falco–Boric, 87 A.D.3d 1146, 1147, 929 N.Y.S.2d 870). However, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence ( see Matter of Jose L.I., 46 N.Y.2d at 1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059; Matter of Destiny H. [ Valerie B.], 83 A.D.3d 939, 920 N.Y.S.2d 716; Matter of Smith v. Falco–Boric, 87 A.D.3d at 1147, 929 N.Y.S.2d 870). The evidence adduced at the hearing established, by a preponderance of the evidence, that the wife committed the family offenses of aggravated harassment in the second degree and harassment in the second degree, warranting the issuance of an order of protection ( see Family Ct. Act §§ 812, 832; Penal Law §§ 240.30[2], 240.26[3]; Matter of Hagopian v. Hagopian, 66 A.D.3d 1021, 887 N.Y.S.2d 682; Matter of Gray v. Gray, 55 A.D.3d 909, 867 N.Y.S.2d 110; Matter of Robbins v. Robbins, 48 A.D.3d 822, 851 N.Y.S.2d 877; Matter of Thomas v. Thomas, 32 A.D.3d 521, 820 N.Y.S.2d 316).
However, there was insufficient evidence to support the Family Court's finding of the existence of aggravating circumstances ( see Family Ct. Act § 827[a] [vii]; cf. Matter of Charles v. Charles, 21 A.D.3d 487, 488, 799 N.Y.S.2d 822; Matter of Flascher v. Flascher, 298 A.D.2d 393, 751 N.Y.S.2d 396; Matter of Reilly v. Reilly, 254 A.D.2d 361, 688 N.Y.S.2d 153). Thus, the duration of the order of protection may not exceed a period of two years ( see Family Ct. Act § 842). Accordingly, the order of protection must be modified to remain in effect up to and including March 27, 2013 ( see Family Ct. Act §§ 842, 827[a][vii]; Matter of Gelardi v. Gelardi, 62 A.D.3d 701, 877 N.Y.S.2d 693).