Family Offense Proceedings: An Analysis

STATEMENT OF

QUESTIONS INVOLVED

Point One

Whether the petition provided Respondent-Appellant with sufficient notice of the Family Offense of Harassment in the Second Degree to enable the Respondent-Appellant to defend himself?

Answer of the Court Below:    Yes.

Point Two

Whether the evidence set forth by Petitioner-Respondent was sufficient to prove, by a fair preponderance of the evidence, that the Respondent-Appellant committed the Family Offense of Disorderly Conduct?

Answer of the Court Below:    Yes.

Point Three

Whether the evidence set forth by Petitioner-Respondent was sufficient to prove, by a fair preponderance of the evidence, that the Respondent-Appellant committed the Family Offense of Harassment in the Second Degree?

Answer of the Court Below:    Yes.

Point Four

Whether this Appeal is academic in light of the passage of time since the decision of the Family Court below was rendered?

Answer of the Court Below:    No.

STATEMENT OF THE

NATURE OF THE CASE

AND NECESSARY FACTS

The parties to this action have two (2) children in common: Jaylin Isis Redacted, born April 11, 2003, and Alberto Brandon Redacted IV, born September 1, 2007 (see Family Offense Petition, Docket No. O-12437-13, page 2 of 3).

On February 25, 2013, Respondent-Appellant, the father, filed two (2) custody petitions, one for each of his the two children he has in common with the Petitioner-Respondent Court Summary 6/14/13: P1)[1].

Over two months later, on May 8, 2013, Petitioner-Respondent, the mother, filed a Family Offense Petition in the Bronx County Family Court, alleging the following:

The most recent incident was on May 7, 2013 at the petr’s (sic) and her mother’s home. The petr was walking into her building and saw the resp (sic) outside on a bike. The resp was screaming out extreme profanity, such as “you’re sucking dick”, “You’re a fucking ho”, “you’re a dirty bitch,” etc. The resp did this also the day before on 05/06/2013, and claimed he will be at the petr’s and her mother’s home, everyday at 9:30 p.m. The petr filed a police report. A copy is attached. The petr and resps have been broken up for over a year and are not reconciling. The resp will not understand this. The resp has raped, drugged and hit the petr in the past and is obsessed with her, and her private life. The petr is worried that it will escalate further as the petr tires to live her life. The resp has court ordered visitation at the precinct, so there is no reason why the resp needs to be around the petr. The petr is becoming fearful for her safety and her children’s well being.

(See Family Offense Petition, Docket No. O-12437-13, page 1 of 3).

On May 9, 2013, the Petitioner-Respondent appeared before the Hon. Jennifer Burtt, Referee, in Part 46 of the Bronx Family Court. Petitioner-Respondent swore to the truth of the statements of fact contained in her Family Offense Petition. Petitioner-Respondent was issued a full temporary order of protection against Respondent-Appellant, requiring him to stay away from Petitioner-Respondent and the parties’ children, requiring him to refrain from communication with Petitioner-Respondent, and prohibiting him from committing any of the Family Offenses against Petitioner-Respondent or the parties’ children. The matter was adjourned to June 14, 2013, to coincide with the return dates of two (2) custody petitions that had already been filed against Petitioner-Respondent by the Respondent-Appellant, and that were scheduled for a conference on that date. (See Trans. 5/9/13: P 3-7).[2]

On June 14, 2013, the parties were both present at Part 46 of the Bronx Family Court, and issue was joined on the Petitioner-Respondent’s Family Offense Petition (see Trans. 6/14/13: P6; Court Summary 6/14/13: P1).

On September 24, 2013, the parties were present at Part 46 of the Bronx Family court for a settlement conference that was held off the record. Settlement of the matter was not achieved (Court Summary 9/24/13: P1).

On November 13, 2013, a hearing was commenced upon Petitioner-Respondent’s Family Offense petition, at which the Petitioner-Respondent testified (see Trans. 11/13/13; Court Summary 11/13/13). Petitioner-Respondent established the relationship between the parties (Trans. 11/13/13: P11). Petitioner-Respondent gave testimony regarding the alleged incidents that occurred on May 7, 2013 (Trans. 11/13/13: P11), and May 6, 2013 (Trans. 11/13/13: P14). Petitioner-Respondent gave testimony regarding an alleged incident in which she was “raped and drugged” by Respondent-Appellant (Trans. 11/13/13: P16-18). Petitioner-Respondent testified regarding an alleged incident in which Respondent-Appellant slapped her face (Trans. 11/13/13: P19-20). Petitioner-Respondent testified regarding an alleged incident in which she “head-butted” Respondent-Appellant, after which he punched her in the face (Trans. 11/13/13: P20-21). On November 13, 2013, Petitioner-Respondent was also cross examined by counsel for Respondent-Appellant (Trans. 11/13/13: P25-61).

On November 21, 2013, counsel for Respondent-Appellant completed her cross examination of Petitioner-Respondent (Trans. 11/21/13: P5-16). The Respondent-Appellant then testified (Trans. 11/21/13: P17-41), denying that he had ever raped or drugged Petitioner-Respondent (Trans. 11/21/13: P20, 29), and denying that he ever stalked Petitioner-Respondent (Trans. 11/21/13: P20). Respondent-Appellant was also cross examined by counsel for Petitioner-Appellant (Trans. 11/21/13: P42-74).

On January 30, 2014, the Court rendered a decision upon Petitioner-Respondent’s Family Offense Petition (Trans. 1/30/14: P17-21; Court Summary 1/30/14: P1). Regarding the alleged incidents that occurred on May 5, 2013 and May 7, 2013, the Court ruled that “the mother’s testimony regarding the incidents…was not sufficient to establish any family offense except for disorderly conduct” (Trans. 1/30/14: P17-18). Regarding the past “physical altercations that she testified to,” the Court found that “the evidence establishes that the father committed the family offense of harassment in the second degree” (Trans. 1/30/13: P19-20). “With regard to the mother’s allegations that the father raped her at her home…sometime in the past, (The Court did) not find that her testimony was sufficient to establish the family offense of sexual misconduct, forcible touching or sexual abuse” (Trans. 1/30/13: P20). “For all those reasons, I am making a finding of disorderly conduct and harassment in the second degree only” (Trans. 1/30/14: P20).

On January 30, 2014, the Court entered a “one year final order of protection against the father directing that he not assault, stalk, harass, menace, threaten or commit any other family offense against the mother. It’s not a stay away, it’s just an order not to engage in any criminal activity” (Trans. 1/30/14: P20-21).

ARGUMENT

POINT ONE

The Petition Provided

Insufficient Notice of the

Family Offense of Harassment

In the Second Degree

To Enable the Respondent-

Appellant to Defend Himself

The Legal Issues:

The Definition of Harassment in the Second Degree

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or            2. He or she follows a person in or about a public place or places; or            3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

(Penal Law, §240.26).

The Notice Requirement

“While Family Court proceedings are permitted to be informal, due process considerations require that a commitment be based on a petition alleging the facts supporting the commitment [citing Family Court Act, §§ 821, 827],” Anderson v. Anderson, 25 A.D.2d 512 (First Dept. 1966). A Family Offense Petition must include “notice of the Family Offense claimed to have been committed which is sufficient to enable the party charged to defend himself”, M.W. v. S.W., 2007 NY Slip Op 50872 (U), [Supreme Court, Westchester County, 2007]. “A bare allegation that “the respondent assaulted me” may not be sufficient to apprise a respondent of the acts of occurrences supporting that allegation (citations omitted), Eileen W. v. Marion A., 169 Misc.2d 484, 490 [Family Court, NY County, 1996]. “Family Court erred in determining that petitioner was entitled to an order of protection based on its finding that respondent committed acts that constituted harassment in the second degree. The court’s finding is improperly predicated on facts not alleged in the petition.” Felicia W. v. Chandler C., 9 A.D.3d 830 [Fourth Dept. 2004].

The Family Offense Petition

In the case at bar, the only thing that is alleged in the Family Offense Petition that relates to the Family Offense of Harassment in the Second Degree is the following:

The resp (sic) has raped, drugged and hit the petr (sic) in the past and is obsessed with her, and her private life.

(See Family Offense Petition, Docket No. O-12437-13, page 1 of 3).

In her decision, the Family Court reviewed the evidence adduced as to each of the allegations contained in the Petitioner-Respondent’s petition. The Family Court held as follows regarding Petitioner-Respondent’s allegation that Respondent-Appellant “raped” her:

With regard to the mother’s allegations that the father raped her at her home, at the parties home, sometime in the past, I do not find that her testimony was sufficient to establish the family offense of sexual misconduct, forcible touching or sexual abuse. Her testimony was very limited and vague as to the time and the details of the alleged incidents stating only that the father held her down and then they had sex. There were not sufficient details provided about the alleged incidents to make out the necessary elements of those serious family offenses.

(Trans. 1/30/14: P20).

As to Petitioner-Respondent’s allegation that Respondent-Appellant “drugged” her, the Family Court did not address this allegation in her decision (Trans. 1/30/14: P17-21).

Thus, with regard to the Family Offense of Harassment in the Second Degree, the only findings of fact rendered by the Family Court that support this charge relate to the allegation that Respondent-Appellant “hit” the Petitioner-Respondent:

I do find the evidence establishes that the father committed the family offense of harassment in the second degree with regard to these two incidents and that he either struck, shoved, kicked, or otherwise subjected the mother to physical contact or attempted to do the same with the intent to harass, annoy or alarm her.

(Trans. 1/30/14: P20).

Argument

Thus, the only findings of fact rendered by the Family Court that support her determination that the Respondent-Appellant committed the Family Offense of Harassment in the Second Degree stem from the testimony of the Petitioner-Respondent that she was “hit.” The only notice provided in the petition regarding this allegation was the single word “hit,” buried inside a run-on sentence containing the far more sensational charges that Respondent-Appellant “raped” and “drugged,” and was otherwise “obsessed” with Petitioner-Respondent. This is exactly the kind of “bare allegation” that was deemed NOT “sufficient to apprise a respondent of the acts or occurrences supporting (the) allegation” in Eileen W. v. Marion A., 169 Misc.2d 484, 490 [Family Court, NY County, 1996], and is clearly insufficient “to enable the party charged to defend himself,” as required by M.W. v. S.W., 2007 NY Slip Op 50872 (U), [Supreme Court, Westchester County, 2007]

Conclusion

Point One

For all of the reasons set forth above, the petition in the case at bar provided insufficient notice of the Family Offense of Harassment in the Second Degree to enable the Respondent-Appellant to Defend himself.

POINT TWO

The Evidence Set Forth

By Petitioner-Respondent

Was Insufficient to Prove

By a Fair Preponderance

Of the Evidence that

Respondent-Appellant

Committed the Family

Offense of Disorderly

Conduct

The Legal Issues:

Standard of Proof

At a fact finding hearing pursuant to Article 8 of the Family Court Act, “Only competent, material and relevant evidence may be admitted.” Family Court Act §834. Further, “To support a finding that a respondent has committed a family offense, a petitioner must prove his allegations by a fair preponderance of the evidence.” Everett v. Oneida, 61 A.D.3d 489 (1^st Dept. 2009), Family Court Act §834.

“New York courts have traditionally described this standard (Preponderance of the Evidence) in terms of weight: the evidence favoring the party with the burden of proof must outweigh that which favors the opponent” (Robert A. Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts §3:9 at 90 [5 West’s NY Prac Series 2001]). “A preponderance means the greater part of the evidence…The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds” (PJI 1:60).

Definition of Disorderly Conduct

For the purposes of this case: A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture.

(Penal Law, §240.20).

Public Inconvenience, Annoyance or Alarm 

In the case of People v. Baker, 20 NY3d 354 (2013), the court of Appeals found the proof insufficient to support a charge of Disorderly Conduct:

There is no record basis for the finding of probable cause in this case because the proof is insufficient to support the public harm element. During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. It is clear from the videotape that the public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct—defendant was stepping away from the vehicle when he made them. And there is no basis to infer that Officer Johnson felt threatened by the statements.

Id., at 362.

In the case of Janice M. v. Terrance J., 96 A.D.3d 482 (1^st Dept. 2012), the Petitioner testified:

That respondent, her son-in-law, threatened to have someone beat her up, told her that he would “beat [her] ass,” and threatened to hit her with a broom.

The Appellate Division in Janice M. ruled that the trial court:

Properly dismissed the charge of disorderly conduct since there was no evidence that respondent intended to cause public inconvenience, annoyance or alarm or that his conduct in the private residence recklessly created such a risk.

Id., 482-483.

The Family Offense Petition

May 6, 2013 Incident:

In the case at bar, the Petitioner-Respondent testified as follows regarding the alleged incident that occurred on May 6, 2013:

1. Did you see Mr. Redacted on May 6, 2013?
2. Yes.
3. And under what situation did you come to see him? For what reason did you see him?
4. No reason at all. He just came – – I happened to be with a friend and – –

*        *        *        *        *        *

1. This – – it happened twice with the same person I was with. We were coming from the basketball courts coming towards my building and that’s when he started saying a lot of profanity and nasty things.
2. What did he specifically say when you say that he was saying profanities?
3. The same, just everybody’s going to know you got kicked out of your house. You’re going to be a you’re a bum. You’re with a dirty guy. The guy was with me…

(Trans. 11/13/13: P15-16).

May 7, 2013 Incident

The Petitioner-Respondent testified as follows regarding the alleged incident that occurred on May 7, 2013:

1. And did there come a time where you saw Mr. Redacted on that day?
2. Yes.
3. And can you tell the court when – – when that was?
4. That as around 9:30.
5. 9:30 in the morning or 9:30 at night?
6. At night.
7. And at the time that you saw him, can you tell the court what did he say to you or – – and what did you say to him?
8. He rode the bike. He was supposed to drop off Pampers for my daughter and he started telling me I’m a stupid whore, you know, that’s why I got     evicted. He started screaming. I started – – and       started saying a whole bunch of nasty curses and    threatening me.
9. What, specifically did he say when you said he had some nasty curses?
10. You stupid whore, that’s why you live with a dirty crack head. He’s a bum. You’re dirty. He said    that – – and that’s why you got evicted and as he   was saying that, I was walking to my mom’s    building and I didn’t say not one word to him.

(Trans. 11/13/13: P12-13).

Under cross examination, Petitioner-Respondent admitted that the entire May 7, 2013 incident only lasted “two or three minutes” (Trans. 11/13/13: P40).

Argument

The testimony presented at trial in support of the Petitioner-Respondent’s case is insufficient to support the charge of Disorderly Conduct. There was “no evidence that (Respondent-Appellant) intended to cause public inconvenience, annoyance or alarm or that his conduct … recklessly created such a risk”
(Janice M. v. Terrance J., 96 A.D.3d 482-483 [1^st Dept. 2012]). Likewise, “the public outburst was extremely brief” (People v. Baker, 20 NY3d 354, at 362 (2013), the “statements were not accompanied by menacing conduct” (Id. at 362), and there is no basis to infer that Petitioner-Respondent “felt threatened by the statements” (Id., at 362).

Conclusion

Point Two

The evidence set forth by Petitioner-Respondent was insufficient to prove by a fair preponderance of the evidence that Respondent-Appellant committed the Family Offense of Disorderly Conduct.

POINT THREE

The Evidence Set Forth

By Petitioner-Respondent

Was Insufficient to Prove

By a Fair Preponderance

Of the Evidence that

Respondent-Appellant

Committed the Family

Offense of Harassment

In the Second Degree

The Legal Issues:

The StandardOf Proof 

As stated above, at a fact finding hearing pursuant to Article 8 of the Family Court Act, “Only competent, material and relevant evidence may be admitted.” Family Court Act §834. “To support a finding that a respondent has committed a family offense, a petitioner must prove his allegations by a fair preponderance of the evidence.” Everett v. Oneida, 61 A.D.3d 489 (1^st Dept. 2009), Family Court Act §834. “New York courts have traditionally described this standard (Preponderance of the Evidence) in terms of weight: the evidence favoring the party with the burden of proof must outweigh that which favors the opponent” (Robert A. Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts §3:9 at 90 [5 West’s NY Prac Series 2001]). “A preponderance means the greater part of the evidence…The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds” (PJI 1:60).

In the case of People v. Bleakley, 69 N.Y.2d 490 (1987), the Court of Appeals stated the following:

Intermediate appellate courts are empowered to review questions of law and questions of fact. They do so in both civil cases (CPLR 5501[c]) and criminal cases (citations omitted). Indeed, this unique factual review power is the linchpin of our constitutional and statutory design intended to afford each litigant at least one appellate review of the facts (citations omitted).

In the case of In the Matter of Gregory J., 204 A.D.2d 68 (1^st Dept. 1994), in a review of factual determinations of a Family Court, the appellate court stated:

While great deference is ordinarily accorded to the determination of the trier of facts due to its opportunity to view the witnesses, hear the testimony and observe demeanor, this deference “must give way when the appellate court determines that the fact findings under review are against the weight of the evidence” (citation omitted). Where a different finding than that reached by the fact-finder would not be unreasonable, the appellate court must weigh the relative probative force of conflicting testimony and the relative strength of any inferences that may be drawn from such testimony in the exercise of its unique factual review power (citations omitted).

 

The Definition of

Harassment in the

Second Degree

See Definition of Harassment in the Second Degree, set out above at Page Six.

Petitioner-Respondent’s

Evidence In Support

Of the Allegation

The Petitioner-Respondent testified as follows regarding her allegation that Respondent-Appellant committed the Family Offense of Harassment in the Second Degree:

1. And Ms. Redacted, were there other occasions where Mr. Redacted has physically abused you?
2. Yes.
3. Can you tell the court when?
4. I remember when my son was about two and – – maybe like two and a half years old and I went to pick him up at daycare and ask the grandfather – – his father, if he can pick him up and help me pick him up from the school, so we went to the school to pick up Brandon and I told him since it was only like a block away from his job, I told him I didn’t want him…So I told the grandfather not to let him not to let him go to the father and he insisted that he didn’t want to disrespect his son by just leaving and not saying hi, so we got in there, he took my son out the – – Alberto came up to the van and he took him and I told him, don’t let him take him and he was saying it was okay and I told him, you don’t understand what… So when I went to the house, I had – – he had dropped me at the   house, so he had to drop my son off because he had him now and when he dropped him off, he was cursing and getting nasty with me and I went to leave my house with my son and he blocked the door. Then I went to call the cops on him and as I   picked up the phone, he slapped me in my face and the phone fell out of my hand and I ran upstairs to my friend’s house and she took pictures of my face with his hand mark on my face.
5. And did you have a mark after that?
6. Yes.
7. Did you go to – –
8. A hand – – a hole handprint on my face.
9. And did you seek medical attention?
10. No because it was a slap.
11. And was this the first time Redacted used his hands on your face?
12. No, after there was a – – there was – – besides him holding me down to force me to have sex, one time my – – I had gave birth to my daughter and I had just go home and he was – – he was being rough with me and he held me down and I told him to let go of me because he’s hurting me because I had shots in both of my hands and I had bruises from the shots of the IV and he didn’t let go and I head butt him in his face. And he put – – he the bathroom with her and about ten minutes later my mom came in with my brother and he decided   to leave because my brother was going to fight him.

(Trans. 11/13/13: P18-21).

Under cross examination, the Petitioner-Respondent testified that “The last time he hit me was when my son was about two years old,” and that her son was “six” at the time of her testimony (Trans. 11/13/13: P30). Petitioner-Respondent further claimed that she was “not sure of the date, it was so long ago” (Trans. 11/13/13: P32).

The Insufficiency of

Petitioner-Respondent’s

Evidence

Petitioner-Respondent claimed that she made police reports regarding the hitting, but did not have copies in the court room with her on the date of her testimony (Trans. 11/13/13: P32-33). Likewise, although she testified that she “ran upstairs to my friend’s house and she took pictures of my face with his hand mark on my face” (Trans. 11/13/13: P20), Petitioner-Respondent did not offer any such pictures into evidence (Trans. 11/13/13: P2), nor did she produce her friend as a witness to said hand mark (Trans. 11/13/13: P19-20). Finally, with regard to her testimony that the Respondent-Appellant “punched (her in her) face,” Petitioner-Respondent failed to produce either her mother or brother to testify regarding what they saw or heard during the altercation (Trans. 11/13/13: P20-21).

The Respondent-Appellant’s

Rebuttal Evidence

The Respondent-Appellant testified on November 21, 2013, and was asked, “have you ever struck Ms. Redacted.” Respondent-Appellant stated categorically, “Never, I have four sisters, fifteen nieces and nephews. I don’t respect no man that puts his hands on his woman, let alone take something personally from a woman like that” (Trans. 11/21/13: P29). Respondent-Appellant was also asked, “Have you ever forced her to have sex?” to which he replied, “Never” (Trans. 11/21/13: P29).

The Respondent-Appellant also offered a potential motive for the Petitioner-Respondent to file false allegations against him:

1. Did Ms. Redacted tell you why she filed this case against you?
2. Yeah, she said she was going to get me locked up and she doesn’t want me with the kids. She – – she does this every time that she gets mad. Whenever she gets mad, she falsely accuses me of things.

(Trans. 11/21/13: P29).

Consistent with his testimony regarding Petitioner-Respondent’s motive to file false allegations, it should be noted that the Respondent-Appellant filed two separate custody petitions, one for each of the children he shares with the Petitioner-Respondent, on February 25, 2013, seventy-two days before Petitioner-Respondent filed her Family Offense Petition.

Argument

“In any proceeding pursuant to (The Family Court Act), a court shall not  deny an Order of Protection or dismiss a petition solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition.” FCA §812(1). However, passage of a great deal of time between an event and the complaining thereof certainly lies suspect to a charge of opportunism when the making of the complaint coincides with a motive on the part of the complainer to even a score. Such is indicated by the facts of this case, where the Petitioner-Respondent filed her Family Offense years after the events complained of, but only two months after the filing of custody petitions by Respondent-Appellant.

Additionally, the Family Court had nothing more than the testimony of the Petitioner-Respondent, uncorroborated by either third party witnesses, or photographic evidence. The Family Court failed to articulate anything about the testimony or demeanor of the Respondent-Appellant to support her determination that his “blanket denial” was not credible. The Family Court also failed to address the issue of whether the Petitioner-Respondent was motivated to file her Family Offense petition as retaliation for Respondent-Appellant’s custody petitions.

It is clear that in this case “a different finding than that reached by the fact finder would not be unreasonable.” To the contrary, the findings of fact of the Family Court below are clearly against the weight of the evidence. For this reason, it is incumbent upon the instant Court to conduct its own review of the facts of the incidents set forth above, and exercise its “unique factual review power” to ascertain whether the Petitioner-Respondent met her burden of providing favorable evidence that outweighs the evidence which favors the Respondent-Appellant.

Conclusion

Point Three

For all of the reasons set forth above, the evidence set forth by Petitioner-Respondent was insufficient to prove by a fair preponderance of the evidence that Respondent-Appellant committed the Family Offense of Harassment in the Second Degree against her.

POINT FOUR

This Appeal

Is Not

Academic

The Legal Issues:

The Legal Standard

In the case of Cutrone v. Cutrone, 225 A.D.2d 767 (2^nd Dept. 1996), the Court held, “although the order of protection excluding the appellant from the family residence has expired, in light of the enduring consequences which may potentially flow from an adjudication that a party has committed a family offense, we find that this appeal is not academic” [Id. at 769, citing Matter of Bickwid v. Deutsch, 87 N.Y.2d 862 (1995), and Matter of Williams v. Cornelius, 76 N.Y.2d 542 (1990)].

In the case of In re William A., 72 A.D.3d 587 (1^st Dept. 2010), in which the Family Court adjudicated appellant a juvenile delinquent and imposed a conditional discharge, this Court held, “The fact that the term of the conditional discharge has now expired does not moot this appeal…as the stigma attached to the juvenile delinquency adjudication remains [Id. at 588, citing Matter of Bickwid v. Deutsch, 87 N.Y.2d 862 (1995)]. In the case of Paula A. v. Jose A., 60 A.D.3d 504 (1^st Dept. 2009), this Court held, “Inasmuch as enduring consequences potentially flow from an order adjudicating a party in civil contempt, an appeal from that order is not rendered moot simply because the resulting prison sentence has already been served” [Id., citing Matter of Bickwid v. Deutsch, 87 NY2d 862, 863 (1995)].

Argument

In the instant case, the Order of Protection at issue will likely have expired prior to a full adjudication of this appeal. Nonetheless, based upon the legal precedents cited above, “in light of the enduring consequences which may potentially flow from an adjudication that a party has committed a family offense,” this appeal is not academic [Cutrone v. Cutrone, 225 A.D.2d 767, 769 (2^nd Dept. 1996)].

Conclusion

Point Four

For all of the reasons set forth above, this appeal is not academic.

FINAL CONCLUSION

For all of the reasons set forth above, the decision of the Family Court below holding that the Respondent-Appellant committed a Family Offense, and imposing a one year Order of Protection, should be reversed.

PRINTING SPECIFICATION STATEMENT

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Dated: December 23, 2014

___________________________

Michael F. Dailey

Attorney for Respondent-Appellant

One Riverdale Avenue

Suite One, Mailbox Eleven

Bronx, New York 10463

(718)543-0100

(email) mikedaileylaw@gmail.com

[1] Citations to the Court Activity File Summary sheets will be made by setting for the words “Court Summary,” followed by the date, followed by the letter “P” for page, and then the page number.

[2] Citations to the court transcripts will be made by setting forth the word “Trans.”, followed by the date upon which the testimony was given, followed by the letter “P” for page, and then the page number.