Opinion
2014-05-21
In the Matter of Jean HON, respondent, v. TIN YAT CHIN, appellant.
Helene Chowes, New York, N.Y., for appellant. Frederica L. Miller, New York, N.Y., for respondent.
Helene Chowes, New York, N.Y., for appellant. Frederica L. Miller, New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Tin Yat Chin appeals from an order of protection of the Family Court, Queens County (Lebwohl, J.), dated January 23, 2013, which, after a hearing, and upon a finding that he committed the family offenses of disorderly conduct, harassment in the first degree, menacing in the second degree, and reckless endangerment in the second degree, directed him, inter alia, to stay away from the petitioner until and including January 23, 2015.
ORDERED that the order of protection is affirmed, without costs or disbursements.
“The Family Court is a court of limited jurisdiction and cannot exercise powers beyond those granted to it by statute” (Matter of Welch v. Lyman, 100 A.D.3d 642, 643, 953 N.Y.S.2d 643). Pursuant to Family Court Act § 812, the Family Court has concurrent jurisdiction with the criminal courts over proceedings concerning certain criminal acts occurring “between spouses or former spouses, or between parent and child or between members of the same family or household” (Family Ct. Act § 812[1] ). For purposes of Family Court Act article 8, “members of the same family or household” include “persons related by consanguinity or affinity” (Family Ct. Act § 812[1][a] ). The appellant concedes that he is the uncle of the petitioner. Thus, contrary to the appellant's contention, he and the petitioner are “members of the same family or household,” and the Family Court had subject matter jurisdiction over this proceeding.
In a family offense proceeding, the allegations asserted in a petition seeking the issuance of an order of protection must be supported by “a fair preponderance of the evidence” (Family Ct. Act § 832). 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 if supported by the record ( see Matter of Gray v. Gray, 55 A.D.3d 909, 909, 867 N.Y.S.2d 110;Matter of Kraus v. Kraus, 26 A.D.3d 494, 495, 809 N.Y.S.2d 471). While the record does not support a determination that the appellant committed the family offense of reckless endangerment in the second degree against the petitioner, even if he committed that offense against other members of the subject household, a fair preponderance of the credible evidence supports the Family Court's determination that the appellant committed the family offenses of menacing in the second degree and harassment in the first degree against the petitioner, as well as disorderly conduct, thus warranting the issuance of an order of protection ( see Matter of Banks v. Opoku, 109 A.D.3d 470, 470, 970 N.Y.S.2d 562;Matter of Nettles v. Fearrington, 95 A.D.3d 1131, 1131, 943 N.Y.S.2d 904;Matter of Gray v. Gray, 55 A.D.3d at 909–910, 867 N.Y.S.2d 110;Matter of Rankoth v. Sloan, 44 A.D.3d 863, 864, 844 N.Y.S.2d 357;Matter of Onuoha v. Onuoha, 28 A.D.3d 563, 564, 813 N.Y.S.2d 506).
The appellant's remaining contentions are without merit. DILLON, J.P., BALKIN, MILLER and MALTESE, JJ., concur.