        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1056
CAF 11-00898
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF CHRISTY BRAZIE,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FLORENCE ZENISEK, RESPONDENT-APPELLANT.


PAUL M. DEEP, UTICA, FOR RESPONDENT-APPELLANT.

EDWARD G. KAMINSKI, UTICA, FOR PETITIONER-RESPONDENT.

JOHN T. NASCI, ATTORNEY FOR THE CHILDREN, ROME, FOR CARI B., JERREMY
B. AND MCKENNA B.


     Appeal from an order of the Family Court, Oneida County (Brian M.
Miga, J.H.O.), entered February 10, 2011 in a proceeding pursuant to
Family Court Act article 8. The order, among other things, directed
respondent to stay away from petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Respondent, the fiancé of petitioner’s estranged
husband, appeals from an order of protection entered in favor of
petitioner and her children. Petitioner concedes that she failed to
meet her burden of establishing by a preponderance of the evidence
that respondent committed the family offense of reckless endangerment,
and we agree with respondent that petitioner also failed to meet her
burden of proof with respect to the remaining offenses, i.e.,
disorderly conduct, harassment in the second degree and aggravated
harassment in the second degree (see Family Ct Act § 812 [1]; Penal
Law §§ 240.20, 240.26, 240.30; see also Matter of Marquardt v
Marquardt, 97 AD3d 1112, 1113-1114).

     The offense of disorderly conduct was not established because
there was no evidence that respondent intended “to cause public
inconvenience, annoyance or alarm, or recklessly creat[ed] a risk
thereof” (Penal Law § 240.20 [emphasis added]). The offenses of
harassment in the second degree and aggravated harassment in the
second degree were not established because the evidence failed to show
that respondent — by arguing with her fiancé and making threats
against him and petitioner — intended to harass, annoy, threaten or
alarm petitioner, who was not present when the argument occurred.
                                 -2-                          1056
                                                         CAF 11-00898

Although petitioner later listened to a recording of the argument that
had been left as a message on her telephone, there is no evidence that
respondent knew that her fiancé had called petitioner during the
argument and that her threats were being recorded on petitioner’s
telephone. We thus conclude that Family Court erred in failing to
dismiss the petition (see Marquardt, 97 AD3d at 1113; see generally
Matter of Woodruff v Rogers, 50 AD3d 1571, 1571-1572, lv denied 10
NY3d 717). Because we conclude that petitioner failed to establish
that respondent committed a family offense, we need not reach
respondent’s remaining contention.




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
