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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Teresa A. BEDFORD, Petitioner, v. Mark L. SEELEY, Appellant.


Decided: October 17, 2019

Before:  Egan Jr., J.P., Clark, Devine, Aarons and Pritzker, JJ. Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.


Petitioner and respondent were involved in a long-term relationship and lived together in a house owned by petitioner in Chenango County.  The parties also co-owned a building in Otsego County that had an apartment on the first floor, a business operated by petitioner on the second floor and a basement where respondent stored his tools.  After the parties' relationship deteriorated, respondent moved his belongings from petitioner's house to the apartment in Otsego County.  Based upon several incidents that occurred during the moving process, petitioner commenced this family offense proceeding.  Following a hearing, at which petitioner and respondent were the only witnesses to testify, Family Court credited the testimony of petitioner and found that respondent committed the family offenses of disorderly conduct and criminal mischief.1  The court also issued a two-year order of protection in favor of petitioner.  Respondent appeals.  We affirm.

Petitioner, as the party seeking an order of protection, bears the burden of proving by a fair preponderance of the evidence that respondent committed a family offense (see Matter of Wilson v. Wilson, 169 A.D.3d 1279, 1279, 94 N.Y.S.3d 721 [2019];  Matter of Romena Q. v. Edwin Q., 140 A.D.3d 1232, 1232, 33 N.Y.S.3d 504 [2016];  Matter of Shana SS. v. Jeremy TT., 111 A.D.3d 1090, 1091, 976 N.Y.S.2d 252 [2013], lv denied 22 N.Y.3d 862, 2014 WL 642795 [2014]).  As relevant here, a person is guilty of disorderly conduct when, “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,” he or she “engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20[1]) or “creates a hazardous or physically offensive condition by any act which serves no legitimate purpose” (Penal Law § 240.20[7]).  At the hearing, petitioner testified that she went with her friends to retrieve a refrigerator from the apartment.  According to petitioner, respondent “tried to stop” them and then “flew into a rage, screamed and carried on in front of everybody” and rocked the refrigerator until all of the food fell out onto the ground.  Petitioner also testified that respondent returned to the house later with some helpers and that he was being “abusive” to her, “ranting” and “making accusations.”  As a consequence, petitioner did not feel safe.

In our view, petitioner demonstrated by a preponderance of the evidence that respondent's actions were “violent, tumultuous or threatening” (Penal Law § 240.20[1]) and that he created a hazardous condition by acting in a manner that served no legitimate purpose (see Penal Law § 240.20[7]).  Furthermore, contrary to respondent's assertion, the evidence from the hearing establishes that respondent acted with the requisite mens rea (compare Matter of Sharon D. v. Dara K., 130 A.D.3d 1179, 1181, 13 N.Y.S.3d 656 [2015]).  To the extent that respondent disputed the account given by petitioner, Family Court's credibility determinations are entitled to great deference (see Matter of Dawn DD. v. James EE., 140 A.D.3d 1225, 1226, 33 N.Y.S.3d 499 [2016], lv denied 28 N.Y.3d 903, 2016 WL 4999687 [2016];  Matter of John O. v. Michele O., 103 A.D.3d 939, 940, 962 N.Y.S.2d 362 [2013]).  As such, we conclude that the court did not err in finding that respondent committed the family offense of disorderly conduct (see Matter of Zhuo Hong Zheng v. Hsin Cheng, 144 A.D.3d 1166, 1167, 42 N.Y.S.3d 290 [2016];  Matter of Tucker v. Miller, 138 A.D.3d 1383, 1384, 30 N.Y.S.3d 414 [2016], lv denied 28 N.Y.3d 904, 2016 WL 5001258 [2016]).

Regarding criminal mischief, as noted, Family Court did not articulate the specific subdivision or degree when it concluded that respondent committed criminal mischief.  Notwithstanding this failure, we are empowered to conduct an independent review of the record to determine whether a fair preponderance of the evidence supports a finding that respondent committed one of the qualifying family offenses (see Matter of Jasmin NN. v. Jasmin C., 167 A.D.3d 1274, 1276, 91 N.Y.S.3d 543 [2018];  Matter of Debra SS. v. Brian TT., 163 A.D.3d 1199, 1203–1204, 81 N.Y.S.3d 621 [2018]).  That said, criminal mischief in the fourth degree occurs when one “intentionally damages property of another person,” with “no right to do so nor any reasonable ground to believe that he or she has such right” (Penal Law § 145.00[1]).

Petitioner testified that she told respondent that she intended to leave his remaining belongings that were at her house outside the door and that the door would be locked.  Petitioner further testified that respondent replied with an angry text message and, when he came to the house, he kicked the door and broke the glass in the upper part of the door.  In view of this testimony, we are satisfied that petitioner proved that respondent committed criminal mischief in the fourth degree (see Matter of Romena Q. v. Edwin Q., 140 A.D.3d at 1233, 33 N.Y.S.3d 504).

ORDERED that the order is affirmed, without costs.


1.   Family Court did not specify the degree or subdivision of criminal mischief.

Aarons, J.

Egan Jr., J.P., Clark, Devine and Pritzker, JJ., concur.

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