Matter of Nassy v. Mckenzie

Summary

The Appellate Division, Second Department, affirmed an order of protection issued after finding that Donald S. Mckenzie II committed the family offenses of menacing in the third degree and harassment in the second degree. The court held that the appeal was not academic despite the order's expiration because enduring consequences could flow from the family-offense finding, and it upheld the Family Court's credibility determinations and evidentiary rulings. The court also denied the respondent's motion to dismiss the appeal as academic.

Holdings

1. The appeal was not rendered academic because enduring consequences may flow from a finding that the appellant committed a family offense.
2. A fair preponderance of the evidence supported the Family Court's finding that Mckenzie committed menacing in the third degree and harassment in the second degree.
3. Any error in permitting testimony concerning prior incidents was harmless because the Family Court expressly stated that it was not relying on that evidence and based its findings on the conduct alleged in the petition.

Questions Presented

1. Whether the appeal remained justiciable after the order of protection expired.
2. Whether the evidence supported the Family Court's finding, by a fair preponderance of the evidence, that Mckenzie committed menacing in the third degree and harassment in the second degree.
3. Whether the Family Court's credibility determination should be disturbed on appeal.
4. Whether permitting testimony concerning incidents not alleged in the petition constituted reversible error.

Disposition

affirmed