IN RE: Rosita K. HOWARD (2000)

In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from (1) an order of the Family Court, Richmond County (Clark, J.), dated September 22, 1999, which, after a hearing, found that he had willfully violated a temporary order of protection previously issued by the court on November 29, 1997, and directed his incarceration for a term of 30 days, and (2) an order of the same court, also dated September 22, 1999, which found that he had committed a family offense against the wife on June 6, 1997, and granted her a permanent order of protection until September 21, 2000.

ORDERED that the order finding the appellant in willful violation of a temporary order of protection is reversed, on the law, without costs or disbursements, and the first petition is dismissed;  and it is further,

ORDERED that the order which granted the respondent a permanent order of protection is affirmed, without costs or disbursements.

The Family Court's finding that the appellant willfully violated the temporary order of protection requiring him to stay away from the respondent is not supported by the evidence.   The appellant, accompanied by police officers, was retrieving personal items from the respondent's residence when she arrived.   There was no evidence that the appellant knew that the respondent would arrive home, and he left the residence almost immediately after her arrival (see, Matter of Barbara O., 252 A.D.2d 761, 676 N.Y.S.2d 241).

The appellant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.