APPEAL by Richard Cassie, in a family offense proceeding pursuant to Family Court Act article 8, from an order of protection of the Family Court (Anthony Cannataro, J.), dated March 9, 2012, and entered in Kings County, which, after a hearing, and upon a finding that he had committed the family offense of disorderly conduct, directed him to refrain from engaging in certain conduct, including harassment and disorderly conduct, toward Dionne Cassie.
Etta Ibok, Brooklyn, N.Y., for appellant.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, SANDRA L. SGROI, JJ.
OPINION & ORDER
The issue presented on this appeal is whether, to establish the family offense of disorderly conduct, a petitioner must demonstrate that the challenged conduct was intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. We hold that such a showing is required, and, since the petitioner in the present case failed to meet that burden, we reverse the order of protection issued in her favor.
On February 15, 2012, the petitioner, Dionne Cassie (hereinafter the wife), filed a family offense petition against her husband, Richard Cassie (hereinafter the husband). The petition alleged that, on February 11, 2012, the parties engaged in a dispute or altercation because the husband had promised that he was going to leave the marital home and had "reneged on his promise." According to the wife, the husband attempted, unsuccessfully, to push her down a flight of stairs, twisted her arm, causing pain, and pushed her against a wall. Based upon this alleged conduct, the wife asserted that the husband had committed the family offenses of, among others, attempted assault, assault in the second or third degree, harassment in the first or second degree, and disorderly conduct. The wife requested an order of protection requiring the husband to stay away from her and the marital home.
At a hearing on the petition, the wife testified that the parties had been married since 1988, and lived in a two-family house. The wife asserted that, prior to the incident, the husband had promised that he was leaving the marital home. On February 11, 2012, the wife changed the locks of the home and packed a suitcase for the husband. The wife testified that, at approximately 10:00 p.m. on that day, she and the husband became engaged in an altercation in the home, during which he tried to push or pull her down the stairs, he pushed her up against a wall, and he twisted her arm. The wife denied having pushed or struck the husband, but admitted that she bit him. The husband called the police, who responded to the scene, but did not make any arrests. The wife did not file a police report or seek medical attention.
The husband testified that, around the time of the incident, he was not working full time, and the wife was angry and told him that he had to leave the home because he had not paid the electric bill. On February 11, 2012, when the husband tried to open the door to the home, his key did not work. The husband rang the bell and "[s]omeone" opened the door. The husband then started to walk up the stairs while the wife was coming down the stairs. According to the husband, the wife started to push the husband down the stairs, and scratched, bit, and hit him, because she did not want him in the house. The husband showed the court some marks on his arm that he claimed were bite marks. At that point, the husband called the police. The husband ultimately left the home voluntarily, and slept in the garage of the home that night. No one else witnessed the incident because the parties' daughters (who were approximately 16 and 17 years old at the time) were upstairs watching television. The husband asserted that he never tried to push the wife down the stairs, and was never actually above her on the staircase.
At the close of the evidence, the Family Court found that the incident on February 11, 2012, was "a really bad fight" and that both parties were "fighting with each other." However, the court observed, it only had one petition before it, and "to the extent that it's only [the wife's] petition, " the court found that the husband "engaged in the offense of disorderly conduct in the home, in that he fought with [the wife]." The court thereupon issued a two-year order of protection, directing the husband to refrain from various forms of conduct, such as harassment and disorderly conduct.
The husband appeals from the order of protection. He principally argues that the wife failed to establish the offense of disorderly conduct because she failed to show that his conduct was committed with the intent to cause, or recklessly created the risk of causing, public inconvenience, annoyance, or alarm.
The criminal and family courts have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct as defined by the Penal Law when committed between spouses, among others (see Family Ct Act § 812; CPL 100.07, 530.11; see also NY Const, art VI, § 13[b]). In a family offense proceeding, the petitioner has the burden of establishing, by a "fair preponderance of the evidence, " that the charged conduct was committed as alleged in the petition (Family Ct Act § 832; see Matter of Testa v Strickland, 99 A.D.3d 917; Matter of Foxworth v DeJesus, 74 A.D.3d 1064).
Under the Penal Law,
"A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or ...