| Matter of Smith v Falco-Boric |
| 2011 NY Slip Op 06847 [87 AD3d 1146] |
| September 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Brian G. Smith, Respondent, v Donna L.Falco-Boric, Appellant. |
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In a family offense proceeding pursuant to Family Court Act article 8, Donna L. Falco-Boricappeals from an order of protection of the Family Court, Dutchess County (Forman, J.), datedAugust 12, 2010, which, after a fact-finding hearing and upon, in effect, a finding that she hadcommitted certain family offenses, directed her, inter alia, to stay 500 feet away from thepetitioner, Brian G. Smith, until and including August 12, 2011.
Ordered that the order of protection is reversed, on the law, without costs or disbursements,the petition is denied, and the proceeding is dismissed.
Although the order of protection expired by its own terms on August 12, 2011, the appeal hasnot been rendered academic in light of "the enduring consequences which may potentially flowfrom a finding that the appellant committed a family offense" (Matter of Willis v Rhinehart, 76 AD3d641, 642 [2010]; see Matter ofWallace v Wallace, 45 AD3d 599 [2007]; Matter of Hogan v Hogan, 271 AD2d533 [2000]).
The Family Court failed to state on the record the facts which it deemed essential to itsdetermination to grant the petition for an order of protection (see CPLR 4213 [b];Matter of Jose L.I., 46 NY2d 1024, 1025-1026 [1979]; Matter of Destiny H. [Valerie B.], 83AD3d 939 [2011]). However, remittal is not necessary because the record is sufficient forthis Court to conduct an independent review of the evidence (see Matter of Jose L.I., 46NY2d at 1026; Matter of Destiny H.[Valerie B.], 83 AD3d 939 [2011]). The record does not support the Family Court'sfinding, in effect, that the appellant committed a family offense warranting the issuance of anorder of protection (see Family Ct Act § 812).
In light of our determination, we need not reach the appellant's remaining contentions.Angiolillo, J.P., Balkin, Hall and Cohen, JJ., concur.