| Matter of Chu Man Woo v Qiong Yun Xi |
| 2013 NY Slip Op 03326 [106 AD3d 818] |
| May 8, 2013 |
| Appellate Division, Second Department |
| In the Matter of Chu Man Woo,Appellant, v Qiong Yun Xi, Respondent. |
—[*1] Mark Brandys, New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the petitionerappeals from an order of the Family Court, Kings County (Hepner, J.), dated September15, 2011, which, after a hearing, dismissed his petition. By decision and order of thisCourt dated November 21, 2012, the matter was remitted to the Family Court, KingsCounty, for a reconstruction hearing with respect to those proceedings conducted in theabove-entitled case on July 27, 2011, which could not be transcribed, and thereafter toreport to this Court with all convenient speed, and the appeal was held in abeyance in theinterim. The transcript of those proceedings has subsequently been found and filed withthis Court.
Ordered that the order is reversed, on the law, without costs or disbursements, thepetition is reinstated, and the matter is remitted to the Family Court, Kings County, forfurther proceedings on the petition.
A family offense must be established by a "fair preponderance of the evidence"(Family Ct Act § 832; seeMatter of Drury v Drury, 90 AD3d 754 [2011]; Matter of Pearlman vPearlman, 78 AD3d 711, 712 [2010]). Contrary to the Family Court'sdetermination, the petitioner established that the respondent committed the familyoffense of harassment in the second degree (see Family Ct Act §§812 [1]; 832; Penal Law § 240.26; Matter of Mader v Johnson, 74 AD3d 1342 [2010]). Thecredible evidence presented at the hearing established that, on at least two occasions, therespondent engaged in conduct which included throwing cups and other objects at thepetitioner. Such conduct served to "alarm or seriously annoy" the petitioner, and servedno legitimate purpose (Penal Law § 240.26 [3]).
Further, the Family Court erred in considering various police reports related to thealleged family offenses in making its determination. It is well established that policereports are admissible as business records as long as the report is made based upon theofficer's personal observations and while carrying out the officer's police duties (seeHolliday v Hudson Armored Car & Courier Serv., 301 AD2d 392 [2003];Yeargans v Yeargans, 24 AD2d 280, 282 [1965]). Conversely, police reportshave consistently been held inadmissible where the information contained in the reportcame from witnesses not engaged in the police business in the course of which thememorandum was made (see Holliday v Hudson Armored Car & Courier Serv.,301 AD2d 392 [2003]; Yeargans v Yeargans, [*2]24 AD2d at 282). In this case, as there is no evidence as tothe source of the information in the reports, whether that person was under a businessduty to make it, or whether some other hearsay exception would render the statementsadmissible, they should not have been considered by the Family Court (see Holliday vHudson Armored Car & Courier Serv., 301 AD2d 392 [2003]; Gagliano vVaccaro, 97 AD2d 430 [1983]; Cornier v Spagna, 101 AD2d 141, 147[1984]). Dillon, J.P., Dickerson, Austin and Miller, JJ., concur.