Opinion
06-10-2016
In the Matter of Charise R. TELLES, Petitioner–Respondent, v. Todd J. DEWIND, Respondent–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet Somes of Counsel), Pro Bono Appeals Program, Glens Falls, for Respondent–Appellant. Schiano Law Office, P.C., Rochester (Charles A. Schiano, Jr., of Counsel), for Petitioner–Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet Somes of Counsel), Pro Bono Appeals Program, Glens Falls, for Respondent–Appellant.
Schiano Law Office, P.C., Rochester (Charles A. Schiano, Jr., of Counsel), for Petitioner–Respondent.
PRESENT: SMITH, J.P., CARNI, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
Opinion
MEMORANDUM: Respondent appeals from an order of protection issued in favor of petitioner, his girlfriend, in connection with Family Court's determination that he committed acts constituting various family offenses (see Family Ct. Act § 812[1] ), including reckless endangerment in the second degree (Penal Law § 120.20 ). We affirm.
Although the court found that respondent committed various family offenses and sufficiently “state[d] the facts it deem[ed] essential” to its decision (Matter of Tin Tin v. Thar Kyi, 92 A.D.3d 1293, 1293, 938 N.Y.S.2d 407, lv. denied 19 N.Y.3d 802, 2012 WL 1538438 [internal quotation marks omitted]; see Matter of Rocco v. Rocco, 78 A.D.3d 1670, 1671, 910 N.Y.S.2d 826 ), it did not specify the subsections of the criminal statutes upon which it based its findings that respondent had committed the family offenses of forcible touching, harassment in the second degree, and disorderly conduct. Nevertheless, exercising our independent review power, we conclude that the proof is sufficient to establish, by a preponderance of the evidence, that respondent committed the family offenses of forcible touching under Penal Law § 130.52(1), disorderly conduct under section 240.20(1), and harassment in the second degree under section 240.26(1) (see Matter of Lynn TT. v. Joseph O., 129 A.D.3d 1129, 1130, 10 N.Y.S.3d 702 ; see generally Matter of Yaddow v. Bianco, 115 A.D.3d 1338, 1339, 984 N.Y.S.2d 250 ).
We reject respondent's contention that the evidence did not support the finding that he committed the family offense of disorderly conduct because he did not intend to create a public disturbance. A person is guilty of disorderly conduct “when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... [h]e engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20[1] ). The conduct does not have to take place in public, so long as the person recklessly creates a risk of a public disturbance (see Matter of McLaughlin v. McLaughlin, 104 A.D.3d 1315, 1315–1316, 961 N.Y.S.2d 838 ). Here, the testimony presented at the fact-finding hearing established that respondent, in the parties' home, threw petitioner against a wall, forced his fingers in her mouth and caused bleeding, slapped her face, punched her legs, forcibly touched her vagina, and grabbed her by the hair when she tried to get away, all of which ultimately resulted in petitioner leaving the home with her three children, thereby sufficiently establishing a risk of public disturbance (see Matter of Kiani v. Kiani, 134 A.D.3d 1036, 1037–1038, 22 N.Y.S.3d 520 ; Matter of Dietzman v. Dietzman, 112 A.D.3d 1370, 1370, 978 N.Y.S.2d 516 ). That testimony also supports, by a preponderance of the evidence, the court's conclusion that respondent committed the family offenses of reckless endangerment in the second degree, forcible touching, and harassment in the second degree.
We reject respondent's further contention that he was denied a fair trial by the admission of testimony regarding conduct not alleged in the family offense petition. The court's decision was explicitly based solely on the conduct alleged in the petition. In any event, sitting as the trier of fact, the “judge ... is ordinarily presumed to be able to base a determination on admissible evidence while ignoring inadmissible evidence” (Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63 ; see People v. Lamphier, 302 A.D.2d 864, 865, 754 N.Y.S.2d 482, lv. denied 99 N.Y.2d 656, 760 N.Y.S.2d 120, 790 N.E.2d 294 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.