IN RE: an Article 8 Family Offense Proceeding D.S. (2026)

A petition under Article 8 of the Family Court Act having been filed on December 3, 2025; and Petitioner, D.S. having appeared and testified; and Respondent, Z.W. having appeared and testified; and both parties having been represented by counsel; and the matter having duly come on for a fact-finding hearing before this Court on October 22, 2026; and at the close of Petitioner's case a motion to dismiss having been made and denied; and counsel having made summations at the close of Respondent's case; the Court now makes the following findings and determination.

ALLEGED FAMILY OFFENSES

The petition alleges that Respondent committed the following family offenses:

1. Identity Theft 1st (subd. 1 & 2)

2. Identity Theft 2nd (subd. 1 & 2)

3. Identity Theft 3rd (subd. 1)

4. Grand Larceny 4th (subd. 1)

5. Harassment 2nd (withdrawn)

The statutes as provided are as follows:

§ 190.80 Identity theft in the first degree (D Felony)

A person is guilty of identity theft in the first degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:

1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds two thousand dollars; or

2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds two thousand dollars;

§ 190.79 Identity theft in the second degree (E Felony)

A person is guilty of identity theft in the second degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:

1. obtains goods, money, property or services or uses credit in the name of such other person in an aggregate amount that exceeds five hundred dollars; or

2. causes financial loss to such person or to another person or persons in an aggregate amount that exceeds five hundred dollars;

§ 190.78 Identity theft in the third degree (A Misdemeanor)

A person is guilty of identity theft in the third degree when he or she knowingly and with intent to defraud assumes the identity of another person by presenting himself or herself as that other person, or by acting as that other person or by using personal identifying information of that other person, and thereby:

1. obtains goods, money, property or services or uses credit in the name of such other person or causes financial loss to such person or to another person or persons;

§ 155.30 Grand Larceny in the fourth degree (E Felony)

A person is guilty of grand larceny in the fourth degree when he steals property and when:

1. The value of the property exceeds one thousand dollars.

EXHIBITS

Petitioner's Exhibits:

1. Temporary Order of Protection, dated July 27, 2026 (Judicial notice taken; no objection)

2. Temporary Order of Protection, dated March 24, 2026 (Judicial notice taken; no objection)

3. Temporary Order of Protection, dated June 29, 2026 (Judicial notice taken; no objection)

4. Temporary Order of Protection, dated July 27, 2026 (Judicial notice taken; no objection)

5. Temporary Order of Protection, dated December 3, 2025 (Judicial notice taken; no objection)

6. Text messages, pages 1-14 (ID and admitted over objection)

Respondent's Exhibit:

A. Text messages between respondent and petitioner, pages 1-9 (ID and admitted without objection)

TESTIMONY

Petitioner testified that his phone, as well as his wife's phone, had been hacked, and that approximately $2,279 was taken from his Cash App account. He asserted that he believed Respondent was responsible because of message exchanges he attributed to her, indicating that she had stolen money and would not stop. He described noticing missing funds in April 2025 and again referencing earlier losses. Petitioner acknowledged that no police investigation produced evidence implicating Respondent, that he did not know the mechanism of the alleged hacking, and that he did not have documentary proof aside from text messages he attributed to Respondent.

Although a telephone number appears at the top of Petitioner's Exhibit 6, which contains the text messages relied upon by Petitioner, he testified that he did not recognize the number and that when he asked who the sender was, the individual did not provide a name.

Petitioner further testified that he and Respondent had been in an intimate relationship in the past, which he believed contextualized the messages he attributed to her and explained why the alleged hacker referenced getting back together. Respondent, however, denied that she and Petitioner were ever in an intimate dating relationship, testifying that while they had social interactions, they were not romantically involved in the manner Petitioner described.

Respondent testified that she had no involvement in any hacking or access to Petitioner's phone or financial accounts. She denied possessing Petitioner's passwords, denied technological capability to hack a phone or Cash App, and denied stealing any funds. She stated that her intimate involvement with Petitioner ended in 2020 and that subsequent contact was limited. Respondent also denied ever creating or accessing any secondary Cash App account. She further testified credibly that she did not recognize the telephone number appearing on Exhibit 6 and that the number was not hers.

FINDINGS

The burden at fact-finding in a family offense proceeding is a fair preponderance of the evidence. Family Court Act § 832; Matter of Mohammed v Mohammed, 174 AD3d 615 (2nd Dept., 2019). Petitioner must demonstrate competent, credible evidence that Respondent committed the alleged offenses.

Here, although Petitioner credibly testified that unauthorized transactions occurred and that funds were missing from his Cash App account, there is no competent evidence linking Respondent to any hacking, unauthorized access, or financial theft. No forensic evidence, account records, or corroborating proof were presented. The text messages admitted into evidence, while indicative of Petitioner's belief, do not establish that Respondent authored the alleged incriminating statements. The unreliability of Exhibit 6 is further demonstrated by Petitioner's own testimony that he did not recognize the telephone number associated with those messages, and that when he asked who the sender was, the individual did not provide a name. Respondent testified credibly that she did not recognize the telephone number and that it was not hers, reinforcing the lack of attribution.

Furthermore, the Court does not doubt that Petitioner may indeed have been the victim of unauthorized digital access or identity theft. However, the fact that a crime may have occurred is not sufficient, by itself, to establish that Respondent was the perpetrator. People v Roberts, 31 NY3d 406, 427 (2018). The messages relied upon by Petitioner reference the prior relationship and include photographs of Petitioner and Respondent together, but there is no evidence demonstrating that Respondent authored or sent those communications. Digital information, including photographs, can be copied, forwarded, or obtained from cloud-based accounts by unknown actors. The mere fact that a message contains personal photographs or references to a past relationship does not identify its sender. Suspicion, even strong suspicion, does not constitute proof. The law requires competent evidence linking Respondent to the acts alleged, and that connection is absent from the record here.

The Court notes that the parties gave conflicting testimony regarding whether they were ever in an intimate relationship. This issue relates to the Court's subject matter jurisdiction under Article 8 and, as such, may be raised at any time before the conclusion of the case. However, the Court need not resolve that dispute here. Even assuming, arguendo, that the parties were or had been in an intimate relationship sufficient to confer jurisdiction, the petition must nevertheless be dismissed because the evidence does not establish that Respondent committed any of the alleged family offenses. Thus, the outcome of this case does not turn on the nature of the parties' past relationship but rather on Petitioner's failure to present competent proof connecting Respondent to the alleged conduct.

With respect to each charged offense requiring proof that Respondent knowingly and with intent to defraud assumed Petitioner's identity, the record contains no reliable evidence establishing Respondent's involvement. Likewise, there is no proof that Respondent stole property exceeding $1,000 as required for grand larceny in the fourth degree.

Accordingly, based on all the evidence, the Court finds that Petitioner has failed to prove, by a preponderance of the evidence, that Respondent committed identity theft in the first, second, or third degrees, or grand larceny in the fourth degree.

The remaining allegation of harassment in the second degree was withdrawn by Petitioner.

CONCLUSION

At the completion of this hearing, the court finds that Petitioner has failed to prove that the charged family offenses have been committed by Respondent. It is hereby,

ORDERED that the petition is dismissed, with prejudice; and it is further

ORDERED that all Temporary Orders of Protection previously issued in this matter are vacated; and it is further

ORDERED that all future court dates are vacated, and the matter is marked off calendar.

This constitutes the decision and order of the Court.

Date: October 23, 2026

Brooklyn, NY

Hon. Lola Waterman, FCJ

Lola Waterman, J.