Matter of Preller v Collesano
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Attorneys and Parties
Brief Summary
Whether a petitioner seeking an extreme risk protection order under CPLR article 63-A [extreme risk protection order proceedings] can satisfy the clear and convincing evidence standard using only uncorroborated hearsay testimony from a police officer recounting another person's allegations.
The Supreme Court, Suffolk County, found that the petitioner proved by clear and convincing evidence that Darby Collesano was likely to engage in conduct resulting in serious harm to herself or others, and it granted a one-year extreme risk protection order.
The Appellate Division reversed the order granting the extreme risk protection order, denied the petition, and dismissed the proceeding.
The petitioner's proof consisted solely of hearsay that did not fall within any exception to the hearsay rule, and the record did not establish the allegations by clear and convincing evidence.
Background
Police Officer David Preller commenced the proceeding after allegations that on July 17, 2022, Darby Collesano, while intoxicated, bit her husband, William Frage, picked up a kitchen knife, and threatened to kill him in the presence of their two daughters. At the time, a divorce action was pending between Collesano and Frage. Collesano was arrested and charged with menacing in the second degree and two counts of endangering the welfare of a child. Frage also obtained temporary family court orders of protection. At the extreme risk protection order hearing, the petitioner called only Police Officer Erme Amaya, who testified about what Frage told him at the hospital and that Collesano denied the incident. No other witness testified and no other evidence was submitted.
Lower Court Decision
After the hearing, the Supreme Court concluded that the petitioner had proven, by clear and convincing evidence, through Officer Amaya's testimony, that Collesano was likely to engage in conduct resulting in serious harm to herself or others. The court therefore granted an extreme risk protection order for one year.
Appellate Division Reversal
The Appellate Division held that, although CPLR 6343(2) [authorizes the court to consider the petition and a background report] allows some hearsay to be considered in these proceedings, the petitioner here failed to meet the required burden. The evidence at the hearing consisted only of Officer Amaya's recounting of Frage's accusations and Collesano's denial. Because the proof was solely hearsay not shown to fall within any exception, the court ruled that the clear and convincing evidence standard was not satisfied and reversed the order, denied the petition, and dismissed the proceeding.
Legal Significance
The decision underscores that even in expedited extreme risk protection order proceedings, courts must still have competent proof sufficient to meet the clear and convincing evidence standard. Hearsay may be considered in limited circumstances under CPLR 6343(2), but a final extreme risk protection order cannot rest solely on inadmissible hearsay. The court also noted that an appeal from an expired extreme risk protection order is not academic because such an order carries enduring consequences.
A one-year extreme risk protection order cannot be sustained where the petitioner relies only on a police officer's hearsay account of another person's allegations without admissible supporting evidence establishing the claim by clear and convincing evidence.