Matter of Leonardo Thomas B. v. Katherine F.

2017 NY Slip Op 5160, 151 A.D.3d 614, 54 N.Y.S.3d 293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 2017
• Docket: 4345
• Status: Published

Opinion

Order, Family Court, Bronx County (Lauren Norton Lerner, Ref.), entered on or about May 21, 2015, which, upon a fact-finding determination that respondent committed assault in the second degree and aggravated harassment in the first degree, granted the petition and issued a two-year order of protection in favor of petitioner, unanimously reversed, on the law and the facts, without costs, the order of protection vacated, and the petition dismissed.

A fair preponderance of the evidence at the fact-finding hearing does not support the finding that respondent committed assault in the second degree. There is simply no evidence that petitioner sustained serious physical injury (see Penal Law §§ 120.05; 10.00 [10]; Matter of Chigusa Hosono D. v Jason George D., 137 AD3d 631, 632 [1st Dept 2016]).

The Referee also erred in determining that respondent’s actions constituted aggravated harassment in the first degree, since aggravated harassment in the first degree is not a designated family offense (see Family Ct Act § 812 [1]). To the extent the Referee meant to find that respondent committed acts constituting harassment in the first degree (Penal Law § 240.25), which is a designated family offense (see Family Ct Act § 812 [1]), a preponderance of the record evidence does not support a finding that respondent engaged in a course of conduct or repeatedly committed acts that placed petitioner in reasonable fear of physical injury (Penal Law § 240.25). Petitioner testified concerning only a single altercation, and an isolated incident is insufficient to support a finding of harassment in the first degree (see Matter of Ebony J. v Clarence D., 46 AD3d 309 [1st Dept 2007]).

Concur — Sweeny, J.P., Mazzarelli, Andrias, Moskowitz and Gische, JJ.