Opinion
2014-05-14
In the Matter of Jeanette BONILLA, respondent, v. Jose ACOSTA, appellant.
Steven P. Forbes, Jamaica, N.Y., for appellant.
MARK C. DILLON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, Jose Acosta appeals from an order of protection of the Supreme Court, Kings County (Morgenstern, J.), dated January 14, 2013, which, after a fact-finding hearing, and upon a finding that he committed the family offenses of attempted assault in the third degree, menacing in the third degree, aggravated harassment in the second degree, and harassment in the second degree, directed him, inter alia, to stay away from the petitioner for a period up to and including January 13, 2018.
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’ ” (Matter of Alam v. Alam, 108 A.D.3d 665, 666, 968 N.Y.S.2d 403, quoting Family Ct. Act § 832). “The determination of whether a family offense was committed is a factual issue to be resolved by the [hearing court], and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Bibolova v. Radu, 82 A.D.3d 1222, 1223, 919 N.Y.S.2d 388;see Matter of Martinez v. Aviles, 112 A.D.3d 719, 719, 976 N.Y.S.2d 393).
Here, the evidence proffered at the fact-finding hearing was insufficient to establish that the appellant committed the family offense of aggravated harassment in the second degree ( seePenal Law § 240.30; Matter of London v. Blazer, 2 A.D.3d 860, 770 N.Y.S.2d 375). However, a fair preponderance of the credible evidence supported the Family Court's determination that the appellant committed the family offenses of attempted assault in the third degree, menacing in the third degree, and harassment in the second degree, thus warranting the issuance of an order of protection ( seePenal Law §§ 110.10, 120.00[1]; 120.15, 240.26[1]; Matter of Martinez v. Aviles, 112 A.D.3d 719, 976 N.Y.S.2d 393;Matter of Maiorino v. Maiorino, 107 A.D.3d 717, 965 N.Y.S.2d 885).
The Family Court's finding that aggravating circumstances were present was supported by the record ( see Family Ct. Act 3827[a][vii]; Matter of Kondor v. Kondor, 109 A.D.3d 660, 661, 971 N.Y.S.2d 21;Matter of Harry v. Harry, 85 A.D.3d 790, 791, 924 N.Y.S.2d 816).