In re Barbara O.

252 A.D.2d 761, 676 N.Y.S.2d 241, 1998 N.Y. App. Div. LEXIS 8300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1998
• Status: Published

Opinions

—Yesawich Jr., J.

Appeals (1) from an order of the Family Court of Columbia County (Czajka, J.), entered December 23, 1997, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, to find respondent in violation of an order of protection, and (2) from an order of said court, entered December 23, 1997, which issued a modified order of protection.

Respondent was found guilty of violating, on three occasions, an order of protection forbidding him from having any unauthorized contact with his then 12-year-old daughter, and was sentenced to serve six months in jail. In addition, Family Court issued another order of protection, directing respondent to stay away from all five of his children, including his 17-year-old son.

Respondent challenges Family Court’s disposition, contending that the sentence is unduly harsh. We agree. Two of the three violations stemmed from incidents in which respondent merely drove his car into the driveway of the children’s home to deliver items to their mother at her request; he was on the premises for only a few minutes each time and did not exit the car or interact with the children, who were inside. The third incident arose from respondent’s attendance at a relative’s birthday party, where the children were also present with their mother. Again, he had no direct contact with any of them, remaining outside or in a separate room at all times.

Significantly, there was no evidence that respondent knew that his daughter would be at the party, that he intended to communicate or interact with her on any of these occasions, or that she actually suffered any negative consequences— emotional or otherwise — as a result of these brief encounters. Moreover, while the Law Guardian asserts that respondent failed to comply with Family Court’s prior direction that he submit to a mental health evaluation and complete any recommended treatment, Family Court did not make such a finding, nor could it have, given the lack of any probative evidence on the issue. Although respondent did not testify at the fact-finding hearing, he did state under oath, at the time of sentencing, that he had not intended to violate the order.

Under these circumstances, and with due regard for petitioner’s legitimate concern (echoed by the Law Guardian) that the penalty be severe enough to impress upon respondent — a farm laborer

* who has apparently had no previous involvement with the law — the seriousness of his transgressions, and to deter further violations, we find that a sentence of six months’ incarceration, with the last five months suspended (see, Family Ct Act § 846-a), is more in keeping with the nature of the offenses (see, Matter of Christina LL., 233 AD2d 705, 709-710, lv denied 89 NY2d 812; compare, Matter of Nadeau v Sullivan, 204 AD2d 913, 913-914; Matter of Leonetti v Riehl, 154 AD2d 675, 676).

As for respondent’s challenge to the inclusion, in the revised order of protection, of his teenage son, the latter has since attained the age of 18, rendering that objection moot (see, Besharov, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1056, 1998 Pocket Part, at 304).

Mikoll, J. P., and Mercure, J., concur.

While this fact was not established conclusively, respondent’s employer was present at the sentencing hearing, but his testimony was deemed unnecessary when petitioner accepted the representation of respondent’s attorney as to what that testimony would be.