| Matter of Margary v Martinez |
| 2014 NY Slip Op 04768 [118 AD3d 1004] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Gloria P. Margary,Appellant, v Gilbert M. Martinez, Respondent. |
Jessica Spector, Brooklyn, N.Y., for appellant.
Gilbert M. Martinez, Reading, Pennsylvania, respondent pro se.
In a family offense proceeding pursuant to Family Court Act article 8, the petitionerappeals, (1) as limited by her brief, from so much of an order of fact-finding anddisposition of the Family Court, Kings County (Cannataro, J.), dated May 31, 2013, as,after a hearing, directed the issuance of an order of protection in favor of her and againstthe respondent for a period of only six months, and (2) from so much of an order ofprotection of the same court also dated May 31, 2013, as failed to direct the respondentto stay away from the petitioner's home, school, business, and place of employment,failed to find that aggravating circumstances existed, and directed the respondent torefrain from committing certain acts against her only for the period up to and includingNovember 29, 2013.
Ordered that the order of fact-finding and disposition is modified, on the facts, (1) bydeleting from the second decretal paragraph thereof the words "six months" andsubstituting therefor the words "five years," and (2) by adding thereto a decretalparagraph finding that aggravating circumstances exist, including the use of a dangerousinstrument by the respondent against the petitioner; as so modified, the order offact-finding and disposition is affirmed insofar as appealed from; and it is further,
Ordered that the order of protection is modified, on the facts and in the exercise ofdiscretion, (1) by deleting the provision thereof directing that the order of protection shallremain in force until and including November 29, 2013, and substituting therefor aprovision directing that the order of protection shall remain in effect until and includingMay 31, 2018, and (2) by adding thereto a provision directing the respondent to stayaway from the petitioner's home, school, business, and place of employment up to andincluding May 31, 2018; as so modified, the order of protection is affirmed insofar asappealed from; and it is further,
Ordered that one bill of costs is awarded to the petitioner.
After a fact-finding hearing, the Family Court determined that the respondentcommitted the family offense of menacing in the second degree by displaying a gun andthreatening the petitioner with it (see Penal Law § 120.14 [1]). Thecourt issued an order of protection in favor of the petitioner, pursuant to Family CourtAct § 842, requiring the respondent to refrain from committing a familyoffense or criminal offense against the petitioner for a period of sixmonths.
[*2] Since, on appeal, the petitionercontends that the Family Court erred in declining to find that aggravating circumstancesexisted, and improvidently exercised its discretion in fixing the term of the order ofprotection at a period of only six months and in declining to direct the respondent to stayaway from the petitioner's home, school, business, and place of employment, thepetitioner's appeal from the order of protection has not been rendered academic, eventhough it has expired by its terms (see Matter of V.C. v H.C., 257 AD2d 27,32-33 [1999]).
We agree with the petitioner that the Family Court improvidently exercised itsdiscretion in fixing the term of the order of protection at a period of only six months. Therecord supported a finding of aggravating circumstances, based on the respondent's useof a dangerous instrument against the petitioner, which justified the issuance of an orderof protection with a term of up to five years (see Family Ct Act§§ 827 [a] [vii]; 842; Penal Law § 10.00 [13]; Matter of Kondor v Kondor,109 AD3d 660, 661 [2013]; cf. Matter of Pereira-Marshall v Marshall, 48 AD3d 574,575 [2008]). Thus, we modify the order of protection to direct that it remain in effectuntil and including May 31, 2018. Moreover, under the circumstances presented here, theinclusion in the order of protection of a directive that the respondent stay away from thepetitioner's home, school, business, and place of employment is reasonably necessary toprovide meaningful protection to the petitioner and to eradicate the root of the familydisturbance (see Family Ct Act § 842 [a]; Matter of Mistretta v Mistretta,85 AD3d 1034, 1035 [2011]; Merola v Merola, 146 AD2d 611, 612[1989]).
Contrary to the respondent's contention, the Family Court properly exercised subjectmatter jurisdiction over the petitioner's family offense petition despite the fact that mostof the alleged acts occurred in Pennsylvania (see Matter of Richardson v Richardson, 80 AD3d 32[2010]). Since the respondent did not appeal or cross-appeal, his remaining contentions,made in connection with his request for certain affirmative relief, are not properly beforethis Court (see Hecht v City of New York, 60 NY2d 57, 61 [1983]; Matter of Quintanilla vMorales, 110 AD3d 1081, 1082 [2013]). Skelos, J.P., Lott, Roman and LaSalle,JJ., concur.