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IN RE RYAN PERRIE M., petres, v. CADEN M., res-res

4522. IN RE RYAN PERRIE M., petres, v. CADEN M., res-res — Andrew J. Baer, New York, for ap — Tennille M. Tatum-Evans, New York, for res — Order of protection, Family Court, Bronx County (Karen M.C. Cortes, Referee), entered on or about June 15, 2016, which, upon a fact-finding determination that respondent committed the family offenses of assault in the third degree, attempted assault, and harassment in the second degree, directed her to refrain from threatening or committing a criminal offense against petitioner for a period of two years, unanimously modified, on the law, to vacate the finding of assault in the third degree, and otherwise affirmed, without costs.

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4522. IN RE RYAN PERRIE M., petres, v. CADEN M., res-res — Andrew J. Baer, New York, for ap — Tennille M. Tatum-Evans, New York, for res — Order of protection, Family Court, Bronx County (Karen M.C. Cortes, Referee), entered on or about June 15, 2016, which, upon a fact-finding determination that respondent committed the family offenses of assault in the third degree, attempted assault, and harassment in the second degree, directed her to refrain from threatening or committing a criminal offense against petitioner for a period of two years, unanimously modified, on the law, to vacate the finding of assault in the third degree, and otherwise affirmed, without costs.

The Referee erred in determining that respondent’s actions constituted the family offense of assault in the third degree because the facts necessary to support such a finding were not alleged in the petition (see Matter of Sasha R. v. Alberto A., 127 AD3d 567 [1st Dept 2015]). Contrary to respondent’s contention, however, the petition sufficiently alleged facts that, if proven, would constitute the family offenses of attempted assault (Family Ct Act §812[1]) and harassment in the second degree (Penal Law 240.26; see Matter of Brown-Winfield v. Bailey, 143 AD3d 707, 708 [2d Dept 2016]).

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