Matter of Nakia C. v Johnny F.R.

Matter of Nakia C. v Johnny F.R. 2015 NY Slip Op 07596 Decided on October 20, 2015 Appellate Division, First 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 October 20, 2015
Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels, JJ.
15917

[*1] In re Nakia C., Petitioner-Respondent, —

v

Johnny F.R., Respondent-Appellant.

Neal D. Futerfas, White Plains, for appellant.

George E. Reed, Jr., White Plains, for respondent.

Order, Family Court, Bronx County (John J. Kelley, J.), entered on or about June 18, 2014, which, upon remand, found aggravating circumstances and imposed a five-year order of protection against respondent, based on his use of a dangerous instrument against petitioner, unanimously affirmed, without costs.

The determination that aggravating circumstances existed to warrant the imposition of a five-year order of protection against respondent is supported by the record (see Family Ct Act § 827[a][vii]; § 842). On the prior appeal (112 AD3d 538 [1st Dept 2013], we found, inter alia, that the Family Court erred in determining that there were no aggravating circumstances that would permit it to impose an order of protection for a duration longer than two years. We concluded that under the definition of a "dangerous instrument," there is "no requirement that the person using the instrument intend to cause serious physical injury" (id. at 539; see Penal Law § 10.00[13]). We decline to reduce the duration of the order of protection, as the presence of aggravating circumstances indicates that a period of more than two years is necessary.

Respondent's request for vacatur of the finding that he had committed the family offense of aggravated harassment in the second degree is unpreserved, and we decline to review it in the interest of justice. In any event, vacatur of the finding would not require a reduction in the duration of the order of protection, which was based on the offense of reckless endangerment in the second degree (see e.g. Matter of Liu v Yip, 127 AD3d 1196 [2d Dept 2015]).

We have considered respondent's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2015

CLERK