SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
565
CAF 14-01936
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
IN THE MATTER OF CHARISE R. TELLES,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
TODD J. DEWIND, RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET SOMES OF
COUNSEL), PRO BONO APPEALS PROGRAM, GLENS FALLS, FOR
RESPONDENT-APPELLANT.
SCHIANO LAW OFFICE, P.C., ROCHESTER (CHARLES A. SCHIANO, JR., OF
COUNSEL), FOR PETITIONER-RESPONDENT.
Appeal from an order of the Family Court, Monroe County (John J.
Rivoli, J.H.O.), entered October 8, 2014 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 affirmed without costs.
Memorandum: Respondent appeals from an order of protection
issued in favor of petitioner, his girlfriend, in connection with
Family Court’s determination that he committed acts constituting
various family offenses (see Family Ct Act § 812 [1]), including
reckless endangerment in the second degree (Penal Law § 120.20). We
affirm.
Although the court found that respondent committed various family
offenses and sufficiently “state[d] the facts it deem[ed] essential”
to its decision (Matter of Tin Tin v Thar Kyi, 92 AD3d 1293, 1293, lv
denied 19 NY3d 802 [internal quotation marks omitted]; see Matter of
Rocco v Rocco, 78 AD3d 1670, 1671), it did not specify the subsections
of the criminal statutes upon which it based its findings that
respondent had committed the family offenses of forcible touching,
harassment in the second degree, and disorderly conduct.
Nevertheless, exercising our independent review power, we conclude
that the proof is sufficient to establish, by a preponderance of the
evidence, that respondent committed the family offenses of forcible
touching under Penal Law § 130.52 (1), disorderly conduct under
section 240.20 (1), and harassment in the second degree under section
240.26 (1) (see Matter of Lynn TT. v Joseph O., 129 AD3d 1129, 1130;
see generally Matter of Yaddow v Bianco, 115 AD3d 1338, 1339).
-2- 565
CAF 14-01936
We reject respondent’s contention that the evidence did not
support the finding that he committed the family offense of disorderly
conduct because he did not intend to create a public disturbance. A
person is guilty of disorderly conduct “when, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a
risk thereof . . . [h]e engages in fighting or in violent, tumultuous
or threatening behavior” (Penal Law § 240.20 [1]). The conduct does
not have to take place in public, so long as the person recklessly
creates a risk of a public disturbance (see Matter of McLaughlin v
McLaughlin, 104 AD3d 1315, 1315-1316). Here, the testimony presented
at the fact-finding hearing established that respondent, in the
parties’ home, threw petitioner against a wall, forced his fingers in
her mouth and caused bleeding, slapped her face, punched her legs,
forcibly touched her vagina, and grabbed her by the hair when she
tried to get away, all of which ultimately resulted in petitioner
leaving the home with her three children, thereby sufficiently
establishing a risk of public disturbance (see Matter of Kiani v
Kiani, 134 AD3d 1036, 1037-1038; Matter of Dietzman v Dietzman, 112
AD3d 1370, 1370). That testimony also supports, by a preponderance of
the evidence, the court’s conclusion that respondent committed the
family offenses of reckless endangerment in the second degree,
forcible touching, and harassment in the second degree.
We reject respondent’s further contention that he was denied a
fair trial by the admission of testimony regarding conduct not alleged
in the family offense petition. The court’s decision was explicitly
based solely on the conduct alleged in the petition. In any event,
sitting as the trier of fact, the “judge . . . is ordinarily presumed
to be able to base a determination on admissible evidence while
ignoring inadmissible evidence” (Matter of Czop v Czop, 21 AD3d 958,
959; see People v Lamphier, 302 AD2d 864, 865, lv denied 99 NY2d 656).
Entered: June 10, 2016 Frances E. Cafarell
Clerk of the Court