| Matter of Nakia C. v Johnny F.R. |
| 2013 NY Slip Op 08540 [112 AD3d 538] |
| December 24, 2013 |
| Appellate Division, First Department |
| In the Matter of Nakia C., Appellant, v JohnnyF.R., Respondent. |
—[*1] Steven N. Feinman, White Plains, for respondent.
Order, Family Court, Bronx County (David B. Cohen, J.), entered on or aboutJanuary 15, 2013, insofar as it denied petitioner's request that the order of protectionremain in effect for five years and that respondent be required to participate in individualcounseling and a batterer's program, unanimously modified, on the law, the matterremanded for reconsideration of the duration of the order of protection in accordanceherewith, and otherwise affirmed, without costs.
The court's finding that respondent committed the family offense of recklessendangerment in the second degree is undisputed and in any event supported by therecord. After threatening violence against petitioner over the telephone, respondentshowed up near her home and, when she drove away with her boyfriend and one of theparties' children, engaged in a high-speed car chase in which he recklessly cut off her car,thereby "creat[ing] a substantial risk of serious physical injury to another person" (PenalLaw § 120.20).
The court erred in concluding that there were no aggravating circumstances thatwould permit it to impose longer than a two-year duration in the order of protection,based on its finding that respondent did not use his car as a dangerous instrumentbecause he did not intend to make or threaten dangerous contact using the car(see Family Ct Act §§ 842, 827 [a] [vii]). A dangerous instrument is"any instrument, article or substance, including a 'vehicle' as that term is defined in thissection, which, under the circumstances in which it is used, attempted to be used orthreatened to be used, is readily capable of causing death or other serious physical injury"(Penal Law § 10.00 [13]). [*2]There is norequirement that the person using the instrument intend to cause serious physical injury.
We have considered petitioner's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Freedman and Clark, JJ.