| Matter of Shiffman v Handler |
| 2014 NY Slip Op 01617 [115 AD3d 753] |
| March 12, 2014 |
| Appellate Division, Second Department |
| In the Matter of Harriette Shiffman,Respondent, v Meryl Handler, Appellant. |
—[*1] Pearlman, Apat, Futterman Sirotkin & Seinfeld, LLP, Kew Gardens, N.Y. (MartinSeinfeld, Richard H. Apat, and Jordana Seiden of counsel), for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the daughterappeals from an order of protection of the Family Court, Nassau County (Corrigan, J.),dated April 5, 2013, which, after a hearing, and upon a finding that she committed thefamily offense of disorderly conduct, directed her, inter alia, to stay away from themother until and including April 4, 2014.
Ordered that the order of protection is reversed, on the facts, with costs, the petitionis denied, and the proceeding is dismissed.
The family offense of "disorderly conduct" is not limited to disorderly conduct in apublic place (Family Ct Act § 812). Each of the requisite elements of that offensemust be established by a preponderance of the evidence (see Family Ct Act§ 832; Matter of Bah vBah, 112 AD3d 921, 922 [2013]). This includes the mens rea of that offense,namely that, when engaging in certain defined conduct, the actor did so "with intent tocause public inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof"(Penal Law § 240.20; seeMatter of Cassie v Cassie, 109 AD3d 337, 340 [2013]).
The determination of whether a family offense was committed is a factual issue to beresolved by the Family Court, and that court's determination regarding the credibility ofwitnesses is entitled to great weight on appeal unless clearly unsupported by the record(see Matter of Alonso vPerdue, 112 AD3d 920 [2013]; Matter of Saldivar v Cabrera, 109 AD3d 831, 832 [2013];cf. Matter of Wan-Su Li vFeng, 45 AD3d 775, 776 [2007]). Here, in the exercise of our factual reviewpower, we conclude that the mother did not sustain her burden. The evidence establishedthat the daughter went to the mother's home, stood on the front porch, knocked on thefront door and windows for a period of nearly an hour, and telephoned the mother's homephone number twice, but it did not establish the daughter's requisite intent or recklessnesswith respect to causing public inconvenience, annoyance, or alarm (seeFamily Ct Act § 812; Penal Law § 240.20). The mother presented noevidence in support of the mens rea element, such as the proximity of the porch toneighbors or other members [*2]of the public, or that theconduct otherwise could have caused public inconvenience, annoyance, or alarm(Matter of Cassie v Cassie, 109 AD3d at 341-342; cf. Matter of Wan-Su Li vFeng, 45 AD3d at 776). Accordingly, we reverse the order of protection, deny thepetition, and dismiss the proceeding. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ.,concur.