Opinion
2014-07-16
In the Matter of Delisemarie ABATANTUNO, respondent, v. Michael A. ABATANTUNO, appellant.
Leonard J. Falcone, Hempstead, N.Y., for appellant.
In a family offense proceeding pursuant to Family Court Act article 8, Michael A. Abatantuno appeals from an order of protection of the Family Court, Nassau County (Stack, J.H.O.), dated October 22, 2013, which, after a hearing, and upon a finding, in effect, that he committed the family offenses of criminal mischief in the fourth degree and harassment in the second degree, directed him, inter alia, to stay away from the petitioner and the parties' children except for parenting time as agreed to between the parties or pursuant to a court order until and including October 21, 2014.
ORDERED that the order of protection is affirmed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence ( seeFamily Ct. Act § 832; Matter of Saldivar v. Cabrera, 109 A.D.3d 831, 971 N.Y.S.2d 310;Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793;Matter of Bazante v. Bazante, 107 A.D.3d 707, 966 N.Y.S.2d 483). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record ( see Matter of Winfield v. Gammons, 105 A.D.3d 753, 963 N.Y.S.2d 272;Matter of Jackson v. Idlett, 103 A.D.3d 723, 959 N.Y.S.2d 706;Matter of Kanterakis v. Kanterakis, 102 A.D.3d 784, 785, 957 N.Y.S.2d 890). Here, although the Family Court made certain credibility findings, it failed to state the facts that it deemed essential to its determination to grant the petition for an order of protection ( see CPLR 4213[b]; Matter of Jose L.I., 46 N.Y.2d 1024, 1025–1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059). However, remittal to the Family Court is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence ( see Matter of Jose L.I., 46 N.Y.2d at 1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059;Matter of Son v. Ramos, 117 A.D.3d 745, 984 N.Y.S.2d 612;Matter of Panico v. Panico, 100 A.D.3d 907, 908, 955 N.Y.S.2d 125). Upon such review, we conclude that the evidence adduced at the hearing established, by a preponderance of the evidence, that the appellant committed the family offenses of criminal mischief in the fourth degree and harassment in the second degree, warranting the issuance of the order of protection ( see Family Ct. Act §§ 812[1]; 832; Penal Law §§ 145.00[1]; 240.26[3] ). RIVERA, J.P., SGROI, COHEN and BARROS, JJ., concur.