Matter of Esther H. v Eddie H.

Matter of Esther H. v Eddie H. 2010 NY Slip Op 08439 [78 AD3d 526] November 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of Esther H., Respondent,
v
Eddie H., Appellant.

—[*1] Kenneth M. Tuccillo, Hastings-On-Hudson, for appellant.

Kenneth Walsh, Brooklyn, for respondent.

Order, Family Court, New York County (Carol J. Goldstein, Ref.), entered on or about October 13, 2009, which, upon a determination, after a fact-finding hearing, that respondent committed the family offenses of menacing in the second and third degrees, reckless endangerment in the second degree, disorderly conduct, and harassment in the second degree, granted petitioner a two-year order of protection against respondent, unanimously modified, on the law, to vacate the finding of harassment in the second degree, and otherwise affirmed, without costs.

The Referee having properly struck petitioner's testimony as to a course of harassing conduct committed by respondent that had been alleged and adjudicated in a prior proceeding, the evidence was legally insufficient to establish harassment in the second degree under Penal Law § 240.26 (3) (see People v Wood, 59 NY2d 811, 812 [1983]). The Referee's remaining findings were supported by a fair preponderance of the evidence.

The Referee properly denied respondent's motion for a mistrial based on the ruling that the evidence of a course of harassing conduct would not be considered in the fact-finding determination, because respondent was not prejudiced by that ruling. Concur—Tom, J.P., Andrias, Nardelli, Acosta and DeGrasse, JJ.