New York Family Law Blog
In family law, an order of protection can serve as a legal tool to prevent harm and ensure the safety of individuals involved in domestic disputes. These disputes often arise out of family offenses, which are specific criminal acts that occur between people who share a family or household relationship. A family offense includes actions such as assault, harassment, stalking, menacing, and other harmful behaviors that place a victim at risk of physical or emotional harm. In the case of Monos v. Monos, 123 A.D.3d 931 (N.Y. App. Div. 2014), the Appellate Division considered an appeal from an order of protection issued by the Family Court in Queens County.
Background Facts
The case involved a petitioner who sought an order of protection against the appellant in Family Court. The petitioner alleged that the appellant committed several family offenses, including criminal mischief, reckless endangerment, and attempted assault. Specifically, the petitioner claimed that the appellant had threatened her with a fork during an altercation. Based on this conduct, the petitioner requested the court to issue an order of protection, directing the appellant to stay away from her for a specified period.
At the initial hearing, the Family Court found that while some of the allegations were not proven by a preponderance of the evidence, others were sufficiently established. The court concluded that the appellant had committed the family offenses of menacing in the second degree and harassment in the second degree. As a result, the court issued an order of protection to prevent further contact between the parties.
Question Before the Court
Whether the Family Court’s order of protection was supported by sufficient evidence.
Court’s Decision
The Appellate Division affirmed the Family Court’s order of protection. The court found that the petitioner had established, by a preponderance of the evidence, that the appellant committed the family offenses of menacing in the second degree and harassment in the second degree. Although the petitioner did not prove the allegations of criminal mischief, reckless endangerment, and attempted assault, the evidence regarding menacing and harassment was sufficient to uphold the order of protection.
In its decision, the court emphasized that a preponderance of the evidence is the standard of proof in family offense proceedings. This standard requires that the evidence demonstrate that it is more likely than not that the alleged conduct occurred. Based on the evidence presented, including testimony about the threat with the fork, the court concluded that the petitioner had met this standard.
Discussion
The court’s decision to affirm the order of protection centered on two key findings: that the appellant committed menacing in the second degree and harassment in the second degree. Under New York law, menacing in the second degree occurs when a person intentionally places another person in fear of physical injury by displaying a dangerous instrument. In this case, the court found that the appellant’s threat to use a fork against the petitioner constituted menacing because the fork was considered a dangerous instrument under the circumstances.
Similarly, the court found that the appellant committed harassment in the second degree. Harassment occurs when a person intentionally causes another person to fear physical harm. The court noted that the petitioner’s testimony about the genuine threat of harm, combined with the appellant’s ability to carry out the threat, was sufficient to establish harassment. The court’s conclusion was based on the factual record and the credibility of the testimony provided during the family offense proceeding.
The appellant’s remaining arguments on appeal did not convince the court to reverse the order of protection. The court determined that the order was “reasonably necessary” to provide the petitioner with meaningful protection and to address the underlying family conflict. The court also exercised its power to conduct a factual review of the evidence and concluded that the Family Court’s decision was supported by the record.
Conclusion
The Appellate Division’s decision to affirm the Family Court’s order of protection was based on its finding that the petitioner had established the offenses of menacing and harassment by a preponderance of the evidence. While the petitioner did not prove other alleged offenses, the evidence related to menacing and harassment was sufficient to support the order of protection.
If you are facing a similar situation or need assistance with an order of protection, it is important to consult with an experienced Queens family lawyer. At Stephen Bilkis & Associates, we are committed to helping clients navigate complex family law issues and ensure that their rights are protected. Contact us for a consultation today.