        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

330
CAF 12-01556
PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF JENNIFER MCLAUGHLIN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TIMOTHY MCLAUGHLIN, RESPONDENT-APPELLANT.


BETZJITOMIR & BAXTER, LLP, BATH (SUSAN BETZJITOMIR OF COUNSEL), FOR
RESPONDENT-APPELLANT.

THE LAW OFFICE OF NANCY M. ERACA, ELMIRA (NANCY M. ERACA OF COUNSEL),
FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Steuben County
(Marianne Furfure, A.J.), entered November 15, 2011 in a proceeding
pursuant to Family Court Act article 8. The order directed respondent
to observe certain conditions of behavior.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent husband appeals from an order of
protection issued in connection with Family Court’s determination that
he committed acts constituting the family offense of disorderly
conduct against petitioner wife (see Family Ct Act § 812 [1]; Penal
Law § 240.20 [1]). Although the order of protection has expired, the
appeal is not moot inasmuch as respondent challenges only the court’s
finding that he committed a family offense and, “ ‘in light of
enduring consequences which may potentially flow from an adjudication
that a party has committed a family offense,’ the appeal . . . is not
academic” (Matter of Hunt v Hunt, 51 AD3d 924, 925; see Marquardt v
Marquardt, 97 AD3d 1112, 1113).

     Contrary to respondent’s contention, petitioner met her burden of
establishing by a preponderance of the evidence that respondent
committed the family offense of disorderly conduct (see Family Ct Act
§ 832; Matter of Hagopian v Hagopian, 66 AD3d 1021, 1022; Matter of
R.M.W. v G.M.M., 23 Misc 3d 713, 717-718; cf. Matter of Bartley v
Bartley, 48 AD3d 678, 678-679). Although respondent’s conduct did not
take place in public, section 812 (1) specifically states that, “[f]or
purposes of this article, ‘disorderly conduct’ includes disorderly
conduct not in a public place.” In addition, disorderly conduct may
be committed when a person “recklessly creat[es] a risk” of annoyance
or alarm through violent or threatening behavior (Penal Law § 240.20
                                 -2-                          330
                                                        CAF 12-01556

[1]). We thus reject respondent’s contention that the statute
“requires more than a ‘risk.’ ”

     We further reject respondent’s contention that the Acting Family
Court Judge abused her discretion in refusing to recuse herself.
“Absent a legal disqualification, . . . a Judge is generally the sole
arbiter of recusal” (Matter of Murphy, 82 NY2d 491, 495), and it is
well established that a court’s recusal decision will not be
overturned absent an abuse of discretion (see People v Moreno, 70 NY2d
403, 405-406). Respondent contends that the Judge was biased against
his attorney, who had filed a complaint against the Judge with the
Judicial Conduct Committee. Although the Rules of the Chief
Administrator of the Courts governing judicial conduct provide that
“[a] judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned” (22
NYCRR 100.3 [E] [1]), respondent’s claim of bias is not supported by
the record and is thus insufficient to require recusal. There is no
evidence that any alleged bias had “ ‘result[ed] in an opinion on the
merits [of this case] on some basis other than what the [J]udge
learned from [her] participation in the case’ ” (Board of Educ. of
City Sch. Dist. of City of Buffalo v Pisa, 55 AD2d 128, 136; see e.g.
Fecteau v Fecteau, 97 AD3d 999, 1002; People v Strohman, 66 AD3d 1334,
1335-1336, lv dismissed 13 NY3d 911; Matter of Petkovsek v Snyder, 251
AD2d 1086, 1086-1087).

     Finally, we reject respondent’s contention that the court erred
in admitting in evidence an audio recording of the incident made by
the parties’ son. While there is no dispute that the parties were not
aware that he was recording the incident and did not give consent
thereto, the eavesdropping statutes are implicated only when the
recording is made “by a person not present thereat” (Penal Law §
250.00 [2]; see CPLR 4506 [1], [2]). The parties’ son, who made the
recording from his bedroom, was “present” for the purposes of the
statutes (see People v Kirsh, 176 AD2d 652, 652-653, lv denied 79 NY2d
949).




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
