A New York appellate court has overturned a lower court's decision to issue an extreme risk protection order against Darby Collesano. The ruling, made on June 17, 2026, by the Appellate Division of the Supreme Court, Second Department, has significant implications for how evidence is evaluated in such cases. The case, docket number 2022-07308, stems from allegations of domestic violence and has raised questions about the standards required to prove a risk of harm.
The court's decision affects Collesano, who faced serious consequences due to the order, which was initially granted after a hearing in August 2022. The ruling highlights the importance of clear and convincing evidence in legal proceedings related to extreme risk protection orders, which are designed to prevent individuals from accessing firearms when they pose a danger to themselves or others.
The dispute began when Police Officer David Preller filed a petition for an extreme risk protection order against Collesano. This petition was based on an incident that allegedly occurred on July 17, 2022, where Collesano was accused of lunging at her husband, William Frage, while intoxicated. The allegations included biting him and threatening to kill him while holding a kitchen knife. At the time of the incident, a divorce action was already pending against Collesano, initiated by Frage in May 2022.
Following the incident, Collesano was arrested and charged with menacing and endangering the welfare of their two children. Frage also sought temporary orders of protection against Collesano, which included directives to refrain from acts of domestic violence. These circumstances set the stage for the extreme risk protection order hearing.
During the hearing, the only witness called by the petitioner was Officer Erme Amaya. He testified that he had interviewed Frage at a hospital shortly after the incident. According to Amaya, Frage described how Collesano had bitten him and threatened him with a knife in front of their daughters. However, Collesano denied these allegations when questioned by Officer Amaya, and she appeared to be intoxicated at the time.
Collesano's attorney moved to dismiss the petition, arguing that there was no direct testimony from witnesses with actual knowledge of the events. The attorney contended that the evidence presented was insufficient to meet the clear and convincing standard required for such orders. The petitioner’s attorney responded that the expedited nature of the proceedings allowed for some flexibility regarding evidence rules.
The Supreme Court ultimately granted the extreme risk protection order, concluding that the petitioner had proven by clear and convincing evidence that Collesano was likely to engage in conduct resulting in serious harm. This decision was based primarily on Officer Amaya's testimony, which included hearsay accounts of the events. Collesano appealed the ruling, leading to the recent decision by the Appellate Division.
The Appellate Division reversed the lower court's order, stating that the petitioner failed to meet the required standard of proof. The court noted, "The petitioner's proof was based solely upon hearsay, which did not fall within any exception to the rules excluding hearsay from evidence." The judges emphasized that the lower court did not adequately explain how the clear and convincing evidence standard was satisfied.
Judge Betsy Barros, along with Judges Cheryl E. Chambers, Lillian Wan, and Susan Quirk, concurred in the decision to reverse the order. They pointed out that the ruling has enduring consequences, even though the extreme risk protection order had expired. The court's opinion stressed the necessity for substantial evidence in such serious matters, particularly when an individual's rights are at stake.
This ruling has broader implications for future cases involving extreme risk protection orders. It underscores the need for courts to carefully evaluate evidence and ensure that it meets the clear and convincing standard before imposing such orders. This decision could influence how similar cases are handled in New York and potentially set a precedent for other jurisdictions as well.
Going forward, the ruling serves as a reminder that while protecting the public from potential harm is crucial, the legal process must also safeguard individuals' rights. The Appellate Division's decision reinforces the principle that accusations alone are not sufficient to justify extreme measures without solid evidence.
Collesano's case may not be entirely over, as there could be further legal ramifications from the initial charges against her. However, the court's decision in this appeal is final unless a higher court decides to take up the matter. Details were not available in the court filing regarding any potential for an appeal to a higher court or any related pending cases.