Matter of Mercia Bascombe v John Bascombe

Matter of Bascombe v Bascombe 2006 NY Slip Op 06231 [32 AD3d 470] August 15, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 11, 2006

In the Matter of Mercia Bascombe, Appellant,
v
John Bascombe, Respondent.

—[*1]

In a family offense proceeding pursuant to Family Court Act article 8, the wife appeals from an order of the Family Court, Kings County (Cammer, J.H.O.), dated June 10, 2005, which, after a hearing, denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and the entry of an appropriate order of disposition.

The Family Court, after conducting a hearing, dismissed the wife's family offense petition in which she sought an order of protection against her husband, finding that she did not establish, by a preponderance of the evidence, that a family offense had occurred. We find, however, that the Family Court erred in not giving collateral estoppel effect to the husband's conviction, upon his plea of guilty, to harassment in the second degree, a class A misdemeanor, which arose out of the same facts which formed the basis of the family offense petition (see Lili B. v Henry F., 235 AD2d 512 [1997]; Colby v Crocitto, 207 AD2d 764 [1994]; Hooks v Middlebrooks, 99 AD2d 663 [1984]). Thus, we reinstate the petition and remit the matter to the Family Court, Kings County, for a dispositional hearing and the entry of an appropriate order of disposition. Schmidt, J.P., Santucci, Luciano and Covello, JJ., concur.