| Matter of Campbell v Campbell |
| 2014 NY Slip Op 09128 [123 AD3d 1123] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Pamela Campbell,Respondent, v O'Neil Campbell, Appellant. |
Placidus Aguwa, Jamaica, N.Y., for appellant.
Jaime Bower, Jamaica, N.Y., for respondent.
Appeal from a final order of protection of the Family Court, Queens County (DennisLebwohl, J.), dated February 6, 2014. The order, after a fact-finding hearing and upon afinding that O'Neil Campbell committed family offenses within the meaning of FamilyCourt Act § 812, directed him to stay away from the petitioner and observeother stated conditions of behavior for one year.
Ordered that the final order of protection is affirmed, without costs ordisbursements.
The petitioner commenced this family offense proceeding pursuant to Family CourtAct article 8 against her adult son, the appellant, who had been living with her since hewas a child. After a hearing, the Family Court found that the appellant had committed thefamily offenses of menacing in the third degree, harassment in the second degree, assaultin the third degree, reckless endangerment in the second degree, and criminal mischief inthe fourth degree. Based on those findings, the court entered a final order of protectionagainst the appellant with a duration of one year. He now appeals.
A family offense must be established by a "fair preponderance of the evidence"(Family Ct Act § 832; see Matter of Maiorino v Maiorino, 107 AD3d 717 [2013];Matter of Drury v Drury, 90AD3d 754 [2011]). The determination of whether a family offense was committed isgenerally a factual issue to be resolved by the Family Court (see Maiorino vMaiorino, 107 AD3d at 717; Matter of Jackson v Idlett, 103 AD3d 723, 723 [2013]; Matter of Kanterakis vKanterakis, 102 AD3d 784, 785 [2013]). The court's determination regardingthe credibility of witnesses is entitled to great weight on appeal and will not be disturbedif supported by the record (see Maiorino v Maiorino, 107 AD3d at 717).
Here, a fair preponderance of the credible evidence adduced at the fact-findinghearing supported a finding that the appellant committed the family offenses of menacingin the third degree (see Penal Law § 120.15; Matter of Melind M. v JosephP., 95 AD3d 553, 555 [2012]), and harassment in the second degree (seePenal Law § 240.26 [3]; Matter of Jackson v Idlett, 103 AD3d at723; Matter of Amber JJ. vMichael KK., 82 AD3d 1558, 1560 [2011]).
However, contrary to the Family Court's finding, the evidence proffered at thehearing was insufficient to establish by a fair preponderance of the evidence that theappellant committed [*2]the family offense of assault inthe third degree. A person is guilty of assault in the third degree when "[w]ith intent tocause physical injury to another person, he [or she] causes such injury to such person"(Penal Law § 120.00 [1]). "Physical injury" is defined as "impairment ofphysical condition or substantial pain" (Penal Law § 10.00 [9]). Here, noevidence was presented that petitioner's physical condition was impaired, and there wasinsufficient evidence to establish that she suffered substantial pain (see Matter ofPhilip A., 49 NY2d 198, 200 [1980]; Matter of Spooner-Boyke v Charles, 121 AD3d 1120[2014]; People v Boley, 106AD3d 753, 753-754 [2013]; Matter of Mary Ellen P. v John R., 278 AD2d750, 752-753 [2000]).
Further, the evidence proffered at the hearing was insufficient to establish by a fairpreponderance of the evidence that the appellant committed the family offense ofreckless endangerment in the second degree, since the appellant's actions did not create asubstantial risk of serious physical injury (see Penal Law § 120.20;cf. Matter of Nakia C. v JohnnyF.R., 112 AD3d 538, 539 [2013]), or the family offense of criminal mischief inthe fourth degree, as there was no proof of property damage (see Penal Law§ 145.00; People v Hills, 95 NY2d 947, 949 [2000]; People vCollins, 288 AD2d 756, 758 [2001]).
However, under the circumstances of this case, we conclude that the terms andduration of the order of protection are nevertheless appropriate.
Contrary to the parties' contentions, under the circumstances of this case, the FamilyCourt's decision not to hold a dispositional hearing prior to issuing the final order ofprotection does not require reversal (see Matter of Miloslau v Miloslau, 112 AD3d 632, 632-633[2013]; Matter of Kaur vSingh, 101 AD3d 877, 878 [2012]; Matter of Sperling v Sperling, 96 AD3d 1067, 1067-1068[2012]; Matter of Sblendorio vD'Agostino, 60 AD3d 773, 773-774 [2009]; Matter of Quintana vQuintana, 237 AD2d 130 [1997]). The appellant's contention that the courtimproperly threatened a less favorable disposition if he insisted upon such a hearing isnot supported by the record. Mastro, J.P., Austin, Maltese and Barros, JJ., concur.