| Matter of Pereira-Marshall v Marshall |
| 2008 NY Slip Op 01354 [48 AD3d 574] |
| February 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Alonga S. Pereira-Marshall,Respondent, v Clint Marshall, Appellant. |
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In a family offense proceeding pursuant to Family Court Act article 8, the former husbandappeals from an order of disposition of the Family Court, Kings County (Olshanksy, J.), datedSeptember 21, 2006, which, after a hearing, and upon finding that he committed family offenseswithin the meaning of Family Court Act § 812 and that there were aggravatingcircumstances, granted the petition to the extent of issuing an order of protection with a term offive years, inter alia, directing the former husband to stay away from the former wife.
Ordered that the order of disposition is modified, on the law, on the facts, and in the exerciseof discretion, by deleting the provisions thereof which found the existence of aggravatingcircumstances and fixed the term of the order of protection at a period of five years andsubstituting therefor a provision fixing the term of the order of protection at a period of twoyears; as so modified, the order is affirmed, without costs or disbursements, and the order ofprotection is modified accordingly.
The former wife filed a family offense petition against the former husband, contending thathe committed acts which constituted the crimes of disorderly conduct, menacing in the seconddegree, and menacing in the third degree. After a fact-finding hearing, the Family Court foundthat the former husband had committed acts constituting disorderly conduct and menacing in thethird degree. Thereafter, after a dispositional hearing, the court found the existence ofaggravating circumstances, which it determined were sufficient to justify the issuance of afive-year order of protection, based upon the former husband's use of a dangerous instrumentagainst the former wife (see Family Ct Act § 827 [a] [vii]; § 842).
We agree with the former husband that the court's finding that there were aggravating [*2]circumstances, which purportedly justified issuing a five-year orderof protection against him, was inconsistent with its finding that he committed acts whichconstituted menacing in the third degree, as opposed to menacing in the second degree(see Penal Law §§ 120.15, 120.14 [1]). Contrary to the contention of theformer husband, the court was not precluded from finding, after the dispositional hearing, that heused a dangerous instrument against the former wife, even though it had implicitly rejected thatallegation after the fact-finding hearing, because the parties were free to submit additionalevidence at the dispositional hearing in order to show the existence of aggravating circumstances(see Matter of Kristine Z. v AnthonyC., 21 AD3d 1319 [2005]). Here, however, the former husband correctly argues thatthere was no evidence presented at the dispositional hearing to support a finding that he used adangerous instrument against the former wife. Lifson, J.P., Ritter, Angiolillo and Carni, JJ.,concur.