In the Matter of Kenneth S. Shank, respondent,
Michele Shank, appellant.
Jeffrey S. Schecter & Associates, P.C., Garden City, NY
(Bryce R. Levine of counsel), for appellant.
Office of Dorothy A. Courten, PLLC, Hauppauge, NY, for
C. DILLON, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.
DECISION & ORDER
by Michele Shank from an order of protection of the Family
Court, Suffolk County (Frank A. Tantone, J.), dated February
22, 2017. The order of protection, upon a finding that
Michele Shank committed the family offenses of harassment in
the first degree and harassment in the second degree, made
after a hearing, directed her, among other things, to stay
away from the petitioner and the parties' three children
until and including February 22, 2018.
that the order of protection is affirmed, without costs or
February 2017, the petitioner commenced this family offense
proceeding pursuant to Family Court Act article 8 against the
appellant, who is the petitioner's wife and the mother of
his three children. The parties and their children reside
together in the marital home pursuant to a temporary
stipulation entered into by the parties in January 2017.
hearing, the Family Court found that the appellant committed
the family offenses of harassment in the first degree and
harassment in the second degree, and issued an order of
protection dated February 22, 2017. The order of protection,
inter alia, directed the appellant to refrain from having
contact with the petitioner and the children until and
including February 22, 2018. The family offenses arose out of
two incidents that occurred in the marital home on September
19, 2016, and February 4, 2017, respectively, during which
time all three children were home. The February 4, 2017,
incident occurred in the presence of the parties'
five-year old daughter.
family offense must be established by a fair preponderance of
the evidence" (M.B. v L.T., 152 A.D.3d 475,
476; see Family Ct Act § 832; Matter of
Zhou Hong Zheng v Hsin Cheng, 144 A.D.3d 1166, 1167).
"The determination of whether a family offense was
committed is a factual issue to be resolved by the hearing
court, and its determinations regarding the credibility of
witnesses are entitled to great weight on appeal unless
clearly unsupported by the record" (M.B. v
L.T., 152 A.D.3d at 476; see Matter of Armanious v
Armanious, 152 A.D.3d 674; Matter of Crenshaw v
Thorpe-Crenshaw, 146 A.D.3d 951, 952; Matter of
Frimer v Frimer, 143 A.D.3d 895, 896).
according due deference to the credibility determinations of
the Family Court, a fair preponderance of the evidence
adduced at the fact-finding hearing supported a finding that
the appellant committed the family offense of harassment in
the second degree (see Family Ct Act §§
812; 832; Penal Law § 240.26, ; Matter of
Frimer v Frimer, 143 A.D.3d at 896; Matter of
Henderson v Henderson, 137 A.D.3d 911, 912; Matter
of Garcia v Marini, 133 A.D.3d 751, 752). The evidence
demonstrated that on both September 19, 2016, and February 4,
2017, the appellant, with the intent to harass, annoy, or
alarm the petitioner, struck or subjected him to physical
contact (see Penal Law § 240.26; Matter
of Maiorino v Maiorino, 107 A.D.3d 717). Further, on two
occasions on February 4, 2017, the appellant engaged in a
course of conduct consisting of screaming at and striking the
appellant on his face, neck, and back with both of her hands,
which alarmed or seriously annoyed him and served no
legitimate purpose (see Penal Law § 240.26;
Matter of Frimer v Frimer, 143 A.D.3d at 896).
contrary to the Family Court's findings, the petitioner
failed to establish by a fair preponderance of the evidence
that the appellant committed the family offense of harassment
in the first degree. The evidence failed to establish that
the appellant's conduct put the petitioner "in
reasonable fear of physical injury" (Penal Law §
240.25; see Matter of Filipowski v Sullivan-Tirelli,
139 A.D.3d 1063). Accordingly, we exercise our factual review
power to vacate the finding that the appellant committed the
family offense of harassment in the first degree (see
Matter of Filipowski v Sullivan-Tirelli, 139 A.D.3d at
the circumstances of this case, we find no basis to disturb
the order of protection (see Family Ct Act §
842; Matter of Frimer v Frimer, 143 A.D.3d at 897).
Contrary to the appellant's contention, the evidence
demonstrated that the order of protection in favor of the
petitioner, as well as the parties' three children, was
the appropriate disposition, even without a finding that the
appellant committed the family offense of harassment in the
first degree, since it was reasonably necessary to provide
meaningful protection to them and to eradicate the root of
the domestic disturbance (see Family Ct Act §
842[a], [k]; Matter of Crenshaw v ...