| Matter of Brazie v Zenisek |
| 2012 NY Slip Op 06724 [99 AD3d 1258] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Christy Brazie, Respondent, v Florence Zenisek,Appellant. |
—[*1] Edward G. Kaminski, Utica, for petitioner-respondent. John T. Nasci, Attorney for the Children, Rome, for Cari B., Jerremy B. and McKennaB.
Appeal from an order of the Family Court, Oneida County (Brian M. Miga, J.H.O.), enteredFebruary 10, 2011 in a proceeding pursuant to Family Court Act article 8. The order, amongother things, directed respondent to stay away from petitioner.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: Respondent, the fiancÉ of petitioner's estranged husband, appeals froman order of protection entered in favor of petitioner and her children. Petitioner concedes that shefailed to meet her burden of establishing by a preponderance of the evidence that respondentcommitted the family offense of reckless endangerment, and we agree with respondent thatpetitioner also failed to meet her burden of proof with respect to the remaining offenses, i.e.,disorderly conduct, harassment in the second degree and aggravated harassment in the seconddegree (see Family Ct Act § 812 [1]; Penal Law §§ 240.20, 240.26,240.30; see also Matter of Marquardt vMarquardt, 97 AD3d 1112, 1113-1114 [2012]).
The offense of disorderly conduct was not established because there was no evidence thatrespondent intended "to cause public inconvenience, annoyance or alarm, or recklesslycreat[ed] a risk thereof" (Penal Law § 240.20 [emphasis added]). The offenses ofharassment in the second degree and aggravated harassment in the second degree were notestablished because the evidence failed to show that respondent—by arguing with herfiancÉ and making threats against him and petitioner—intended to harass, annoy,threaten or alarm petitioner, who was not present when the argument occurred. Althoughpetitioner later listened to a recording of the argument that had been left as a message on hertelephone, there is no evidence that respondent knew that her fiancÉ had called petitionerduring the argument and that her threats were being recorded on petitioner's telephone. We thusconclude that Family Court erred in failing to dismiss the petition (see Marquardt, 97AD3d at 1113; see generally Matter ofWoodruff v Rogers, 50 AD3d 1571, 1571-1572 [2008], lv denied 10 NY3d 717[2008]). Because we conclude that petitioner failed to establish that respondent committed afamily offense, we need not reach [*2]respondent's remainingcontention. Present—Scudder, P.J., Smith, Fahey, Lindley and Martoche, JJ.