Opinion
2012-06-27
In the Matter of David SPERLING, respondent, v. Gladis SPERLING, appellant.
Russell I. Marnell, P.C., East Meadow, N.Y. (Scott R. Schwartz of counsel), for appellant.
In a family offense proceeding pursuant to Family Court Act article 8, Gladis Sperling appeals from an order of protection of the Family Court, Suffolk County (Burke, Ct.Atty.Ref.), dated June 6, 2011, which, after a hearing, and, in effect, upon a finding that she had committed the family offense of harassment in the second degree, directed her, inter alia, to stay away from the petitioner until and including June 6, 2013.
ORDERED that the order of protection is affirmed, without costs or disbursements.
The Family Court failed to state on the record the facts which it deemed essential to its determination to grant the petition for an order of protection ( see CPLR 4213[b]; Matter of Jose L. I., 46 N.Y.2d 1024, 1025–1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059;Matter of Drury v. Drury, 90 A.D.3d 754, 755, 934 N.Y.S.2d 337;Matter of Smith v. Falco–Boric, 87 A.D.3d 1146, 1147, 929 N.Y.S.2d 870). However, remittal to the Family Court is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence ( see Matter of Jose L. I., 46 N.Y.2d at 1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059;Matter of Drury v. Drury, 90 A.D.3d at 755, 934 N.Y.S.2d 337;Matter of Smith v. Falco–Boric, 87 A.D.3d at 1147, 929 N.Y.S.2d 870;Matter of Destiny H. [ Valerie B.], 83 A.D.3d 939, 920 N.Y.S.2d 716). The evidence adduced at the hearing established, by a preponderance of the evidence, that the wife committed the family offense of harassment in the second degree, warranting the issuance of an order of protection ( see Family Ct. Act §§ 812, 832; Penal Law § 240.26[1]; Matter of Genzen v. Genzen, 74 A.D.3d 1196, 902 N.Y.S.2d 425;Barbara E. v. John E., 44 A.D.3d 426, 427, 843 N.Y.S.2d 75;Matter of Jessica C. v. Esteban B., 13 A.D.3d 183, 785 N.Y.S.2d 915).
Moreover, contrary to the wife's contention, under the circumstances of this case, the Family Court's failure to hold a dispositional hearing prior to issuing a two-year order of protection does not require reversal ( see Matter of Sblendorio v. D'Agostino, 60 A.D.3d 773, 773–774, 877 N.Y.S.2d 92;Matter of Hassett v. Hassett, 4 A.D.3d 527, 771 N.Y.S.2d 720;Matter of Dabbene v. Dabbene, 297 A.D.2d 812, 747 N.Y.S.2d 808;Matter of Annie C. v. Marcellus W., 278 A.D.2d 177, 177–178, 719 N.Y.S.2d 225;Matter of Quintana v. Quintana, 237 A.D.2d 130, 654 N.Y.S.2d 27). In addition, upon the exercise of our factual review power, the Family Court's disposition awarding the husband a two-year order of protection was not against the weight of the evidence ( see Matter of Sblendorio v. D'Agostino, 60 A.D.3d at 774, 877 N.Y.S.2d 92;Barbara E. v. John E., 44 A.D.3d at 427, 843 N.Y.S.2d 75).