IN RE: I.E. (2024)

Order, Family Court, New York County (Jacob K. Maeroff, Referee), entered on or about January 30, 2024, which, after a fact-finding determination that respondent committed the family offense of menacing in the third degree, directed respondent to stay away from petitioner and her daughter through March 2, 2024, unanimously modified, on the law, to the extent of including the additional finding that respondent committed harassment in the second degree, and otherwise affirmed, without costs.

Although the order of protection has expired, “given the enduring consequences which may potentially flow from an adjudication that respondent committed a family offense we address the merits of the appeal.”  (Matter of Charlene R. v. Malachi R., 151 A.D.3d 482, 482, 53 N.Y.S.3d 530 [1st Dept. 2017]).

Petitioner proved by a fair preponderance of the evidence that respondent, her husband, committed the family offense of menacing in the third degree against her (Penal Law § 120.15).  The Referee aptly credited petitioner's testimony that, on one occasion, respondent accosted her near where she had parked her car and demanded that she return certain belongings that he had left behind at her apartment.  After she did so and sat in her car, he became enraged, screaming and shouting, and threatening to kill her and her daughter, while preventing them from leaving the car.  Through his aggressive words and actions, respondent placed or attempted to place petitioner in fear of “death, imminent serious physical injury, or physical injury” (Matter of Melind M. v. Joseph P., 95 A.D.3d 553, 555, 944 N.Y.S.2d 82 [1st Dept. 2012];  see Matter of Sonia S. v. Pedro Antonio S., 139 A.D.3d 546, 547, 31 N.Y.S.3d 500 [1st Dept. 2016]).  The Referee credited petitioner's testimony, and this determination is entitled to great deference (see id.).  The petition sufficiently identified the date, time and place of this incident and that it involved harassment that led to police involvement.  To the extent it is argued that the pleadings were insufficient, Family Court had authority to conform petitioner's pleadings to the proof, sua sponte, and there is no contention that he was unfairly surprised or prejudiced (see Oksoon K. v. Young K., 115 A.D.3d 486, 487, 981 N.Y.S.2d 423 [1st Dept. 2014], lv denied, 24 N.Y.3d 902, 2014 WL 4454914 [2014]).

In any event, the credible evidence supports an additional finding that, as pleaded in the petition, respondent committed harassment in the second degree by engaging in a course of conduct including verbal abuse, threats, and violent outbursts, which alarmed or seriously annoyed petitioner and which served no legitimate purpose (Penal Law § 240.26;  see Matter of Alquidamia E.R. v. Luis A., 159 A.D.3d 477, 71 N.Y.S.3d 496 [1st Dept. 2018];  Matter of Melinda B. v. Jonathan L.P., 187 A.D.3d 631, 631–632, 131 N.Y.S.3d 148 [1st Dept. 2020]). We have considered respondent's remaining arguments and finding them unavailing.