Matter of Rousseau v. Palazzo , 998 N.Y.S.2d 908 ( 2015 )

Matter of Rousseau v Palazzo (2015 NY Slip Op 00771)

Matter of Rousseau v Palazzo

2015 NY Slip Op 00771

Decided on January 28, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 28, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
LEONARD B. AUSTIN
SHERI S. ROMAN
HECTOR D. LASALLE, JJ.

2014-00404
2014-00406
(Docket No. 0-2887-13)

[*1]In the Matter of Nitaya J. Rousseau, respondent,

v

Michael A. Palazzo, appellant.

Thomas M. Gambino, Poughkeepsie, N.Y., for appellant.

Thomas N.N. Angell, Poughkeepsie, N.Y. (Maureen J. Brierton of counsel), for respondent.

Karen C. Palumbo, Beacon, N.Y., attorney for the children.

DECISION & ORDER

Appeals from (1) an order of the Family Court, Dutchess County (Denise M. Watson, J.), dated December 13, 2013, and (2) an order of protection of that court entered December 13, 2013. The order dated December 13, 2013, after a hearing, found that the appellant had committed certain family offenses. The order of protection entered December 13, 2013, inter alia, directed the appellant to stay away from the marital residence until and including December 9, 2014.

ORDERED that the order dated December 13, 2013, is affirmed, without costs or disbursements; and it is further,

ORDERED that the appeal from the order of protection is dismissed as academic, without costs or disbursements, as the order of protection expired by its own terms.

The Family Court failed to specify the particular family offenses under Family Court Act § 812(1) that the appellant committed. However, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of McCauley v Galante, 106 AD3d 1089, 1089; Matter of Stewart v Lassiter, 103 AD3d 734, 734). As relevant here, "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person . . . He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26[1]). Contrary to the appellant's contention, a fair preponderance of the evidence adduced at the hearing established that he committed the family offense of harassment in the second degree (see Penal Law § 240.26[1]; Family Ct Act §§ 812, 832; Matter of Miloslau v Miloslau, 112 AD3d 632, 632; Matter of Santiago v Friedman, 35 AD3d 482, 482).

SKELOS, J.P., AUSTIN, ROMAN and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court