| Matter of Crenshaw v Thorpe-Crenshaw |
| 2017 NY Slip Op 00466 [146 AD3d 951] |
| January 25, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Willie Crenshaw,Respondent, v Chanize Thorpe-Crenshaw,Appellant. |
Karen A. Sferlazzo, Warwick, NY, for appellant.
Dawn M. Shammas, Harrison, NY, attorney for the child.
Appeal by the mother from an order of the Family Court, Orange County (LoriCurrier Woods, J.), dated August 24, 2015. The order, after a hearing, found that themother committed the family offenses of harassment in the "first or second degree" andcriminal mischief, and directed her to observe the conditions of an order of protectiondated August 20, 2015.
Ordered that the order dated August 24, 2015, is modified, on the facts, by deletingthe provision thereof finding that the mother committed the family offense of criminalmischief; as so modified, the order is affirmed, without costs or disbursements.
In May 2015, the father commenced this family offense proceeding pursuant toFamily Court Act article 8 against the mother. After a hearing, the Family Court foundthat the mother committed the family offenses of harassment in the "first or seconddegree" and criminal mischief, and directed her to observe the conditions of an order ofprotection dated August 20, 2015, which, inter alia, directed her to stay away from thefather and the child Chyna C. (hereinafter the child) for a period of one year.
Initially, although the order of protection issued by the Family Court in connectionwith the father's family offense petition expired by its own terms on August 20, 2016, theappeal has not been rendered academic " 'given the totality of the enduring legaland reputational consequences of the contested order of protection' " (Matter of Pierre v Dal, 142AD3d 1021, 1022 [2016], quoting Matter of Veronica P. v Radcliff A., 24 NY3d 668, 673[2015]; see Matter of Niyazovav Shimunov, 134 AD3d 1122, 1122 [2015]).
In a family offense proceeding, "the allegations must be 'supported by a fairpreponderance of the evidence' " (Matter of Jordan v Verni, 139 AD3d 1067, 1068 [2016],quoting Family Ct Act § 832). " 'The determination of whether afamily offense was committed is a factual issue to be resolved by the Family Court, andthat court's determination regarding the credibility of witnesses is entitled to great weighton appeal unless clearly unsupported by the record' " (Matter of Jordan vVerni, 139 AD3d at 1068, quoting Matter of Jackson v Idlett, 103 AD3d 723, 723[2013]).
[*2] Here, while the evidence adducedat the hearing established, by a fair preponderance of the evidence, that the mothercommitted acts which constituted the family offenses of harassment in the first andsecond degrees (see Penal Law §§ 240.25, 240.26 [1]; Matter of Savas v Bruen, 139AD3d 737, 738 [2016]; Matter of Kiani v Kiani, 134 AD3d 1036, 1037-1038[2015]; Matter of Konstatine vKonstatine, 107 AD3d 994, 994-995 [2013]; Matter of Panico v Panico, 100 AD3d 907, 908 [2012]), theevidence failed to establish that the mother committed acts which constituted the familyoffense of criminal mischief (see Penal Law § 145.00 [1]).Accordingly, we exercise our factual review power to vacate the finding that the mothercommitted the family offense of criminal mischief (see Matter of Filipowski v Sullivan-Tirelli, 139 AD3d1063, 1064 [2016]).
Further, the evidence adduced at the hearing supported the issuance of the order ofprotection (see Matter of Monosv Monos, 123 AD3d 931, 932 [2014]; Matter of Mistretta v Mistretta, 85 AD3d 1034, 1035[2011]). Chambers, J.P., Roman, Maltese and Barros, JJ., concur.