Opinion
2019–10993 2019–10994 Docket No. O–7946–19
06-17-2020
In the Matter of Julie Ann RICHARDSON, Respondent, v. Robin HAWKER, Appellant.
Heath J. Goldstein, Jamaica, NY, for appellant. Placidus Aguwa, Jamaica, NY, for respondent.
Heath J. Goldstein, Jamaica, NY, for appellant.
Placidus Aguwa, Jamaica, NY, for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 8, Robin Hawker appeals from (1) an order of fact-finding and disposition of the Family Court, Queens County (Elizabeth L. Fassler, J.), dated September 10, 2019, and (2) an order of protection of the same court also dated September 10, 2019. The order of fact-finding and disposition, after a hearing, found that Robin Hawker committed the family offenses of disorderly conduct and harassment in the first degree and directed him to comply with the terms set forth in the order of protection for a period not to exceed two years. The order of protection, inter alia, directed Robin Hawker to stay away from Julie Ann Richardson until and including September 9, 2021.
ORDERED that the order of fact-finding and disposition is modified, on the facts, by deleting the provision thereof finding that Robin Hawker committed the family offense of harassment in the first degree, and substituting therefor a provision finding that Robin Hawker committed the family offense of harassment in the second degree; as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements; and it is further,
ORDERED that the order of protection is affirmed, without costs or disbursements.
The petitioner filed a family offense petition seeking an order of protection against the appellant, her former boyfriend. During the fact-finding hearing, the petitioner testified that the appellant showed up at her home and place of employment and shouted names at her. In addition, the appellant called her cell phone incessantly. The Family Court found that the appellant committed the family offenses of disorderly conduct and harassment in the first degree and directed him to comply with the terms set forth in an order of protection for a period not to exceed two years. The order of protection, inter alia, directed the appellant to stay away from the petitioner until and including September 9, 2021.
In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Estime v. Civil, 168 A.D.3d 936, 937, 90 N.Y.S.3d 557 ). Here, the evidence adduced at the hearing failed to establish, by a fair preponderance of the evidence, that the appellant's conduct put the petitioner "in reasonable fear of physical injury" ( Penal Law § 240.25 ). Accordingly, we exercise our factual review power to vacate the finding of harassment in the first degree (see Matter of Tyrone T. v. Katherine M., 78 A.D.3d 545, 911 N.Y.S.2d 56 ).
However, there is no basis to disturb the order of protection, as the petitioner established by a fair preponderance of the evidence that the appellant committed the family offenses of disorderly conduct and harassment in the second degree (see Family Ct. Act §§ 812[1] ; 832; Penal Law §§ 240.20, 240.26 ; Matter of Melissa N. v. Jeffrey B., 176 A.D.3d 519, 108 N.Y.S.3d 854 ; Matter of Shields v. Brown, 107 A.D.3d 1005, 1006, 966 N.Y.S.2d 900 ).
The appellant's remaining contentions are without merit.
RIVERA, J.P., ROMAN, MILLER and WOOTEN, JJ., concur.