WHEN A RELATIONSHIP ENDS AND A FAMILY OFFENSE BEGINS

One of the hardest things to let go of following the end of a relationship is anger. But that can have consequences as this case illustrates.

Matter of Richardson v Hawker, 2020 NY Slip Op 03392, Decided on June 17, 2020 ,Appellate Division, Second Department:

"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 AD3d 936, 937). 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 [*2]the finding of harassment in the first degree (see Matter of Tyrone T. v Katherine M., 78 AD3d 545).


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 AD3d 519; Matter of Shields v Brown, 107 AD3d 1005, 1006)."