Opinion
2013-03-22
In the Matter of Jennifer McLAUGHLIN, Petitioner–Respondent, v. Timothy McLAUGHLIN, Respondent–Appellant.
Betzjitomir & Baxter, LLP, Bath (Susan Betzjitomir of Counsel), for Respondent–Appellant. The Law Office of Nancy M. Eraca, Elmira (Nancy M. Eraca of Counsel), for Petitioner–Respondent.
Betzjitomir & Baxter, LLP, Bath (Susan Betzjitomir of Counsel), for Respondent–Appellant. The Law Office of Nancy M. Eraca, Elmira (Nancy M. Eraca of Counsel), for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Respondent husband appeals from an order of protection issued in connection with Family Court's determination that he committed acts constituting the family offense of disorderly conduct against petitioner wife ( seeFamily Ct. Act § 812[1]; Penal Law § 240.20[1] ). Although the order of protection has expired, the appeal is not moot inasmuch as respondent challenges only the court's finding that he committed a family offense and, “ ‘in light of enduring consequences which may potentially flow from an adjudication that a party has committed a family offense,’ the appeal ... is not academic” (Matter of Hunt v. Hunt, 51 A.D.3d 924, 925, 858 N.Y.S.2d 724;see Marquardt v. Marquardt, 97 A.D.3d 1112, 1113, 948 N.Y.S.2d 484).
Contrary to respondent's contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct ( seeFamily Ct. Act § 832; Matter of Hagopian v. Hagopian, 66 A.D.3d 1021, 1022, 887 N.Y.S.2d 682;Matter of R.M.W. v. G.M.M., 23 Misc.3d 713, 717–718, 873 N.Y.S.2d 864;cf. Matter of Bartley v. Bartley, 48 A.D.3d 678, 678–679, 852 N.Y.S.2d 326). Although respondent's conduct did not take place in public, section 812(1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior (Penal Law § 240.20[1] ). We thus reject respondent's contention that the statute “requires more than a ‘risk.’ ”
We further reject respondent's contention that the Acting Family Court Judge abused her discretion in refusing to recuse herself. “Absent a legal disqualification, ... a Judge is generally the sole arbiter of recusal” (Matter of Murphy, 82 N.Y.2d 491, 495, 605 N.Y.S.2d 232, 626 N.E.2d 48), and it is well established that a court's recusal decision will not be overturned absent an abuse of discretion ( see People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200). Respondent contends that the Judge was biased against his attorney, who had filed a complaint against the Judge with the Judicial Conduct Committee. Although the Rules of the Chief Administrator of the Courts governing judicial conduct provide that “[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1] ), respondent's claim of bias is not supported by the record and is thus insufficient to require recusal. There is no evidence that any alleged bias had “ ‘result[ed] in an opinion on the merits [of this case] on some basis other than what the [J]udge learned from [her] participation in the case’ ” ( Board of Educ. of City Sch. Dist. of City of Buffalo v. Pisa, 55 A.D.2d 128, 136, 389 N.Y.S.2d 938;see e.g. Fecteau v. Fecteau, 97 A.D.3d 999, 1002, 949 N.Y.S.2d 511;People v. Strohman, 66 A.D.3d 1334, 1335–1336, 886 N.Y.S.2d 262,lv. dismissed13 N.Y.3d 911, 895 N.Y.S.2d 325, 922 N.E.2d 914;Matter of Petkovsek v. Snyder, 251 A.D.2d 1086, 1086–1087, 674 N.Y.S.2d 208).
Finally, we reject respondent's contention that the court erred in admitting in evidence an audio recording of the incident made by the parties' son. While there is no dispute that the parties were not aware that he was recording the incident and did not give consent thereto, the eavesdropping statutes are implicated only when the recording is made “by a person not present thereat” (Penal Law § 250.00[2]; seeCPLR 4506[1], [2] ). The parties' son, who made the recording from his bedroom, was “present” for the purposes of the statutes ( see People v. Kirsh, 176 A.D.2d 652, 652–653, 575 N.Y.S.2d 306,lv. denied79 N.Y.2d 949, 583 N.Y.S.2d 203, 592 N.E.2d 811).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.