Opinion
No. 2008-00913.
October 28, 2008.
In a family offense proceeding pursuant to Family Court Act article 8, Gerard P Gray appeals from an order of protection of the Supreme Court, Kings County (Morgenstern, J.), dated January 16, 2008, which, after a hearing, inter alia, directed him to stay away from the petitioner until January 15, 2013.
Samuel Weinbaum, Brooklyn, N.Y., for appellant.
Before: Florio, J.P., Angiolillo, McCarthy and Chambers, JJ.
Ordered that the order of protection is affirmed, without costs or disbursements.
The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court ( see Matter of Hall v Hall, 45 AD3d 842; Matter of Pastore v Russo, 38 AD3d 556), and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Hall v Hall, 45 AD3d 842; Matter of Wallace v Wallace, 45 AD3d 599; Matter of Dancer v Robertson, 38 AD3d 887; Matter of Meiling Zhang v Jinghong Zhu, 36 AD3d 704; Matter of Kraus v Kraus, 26 AD3d 494). A fair preponderance of the credible evidence did not support the hearing court's determination that the appellant committed the family offense of assault in the third degree ( see Family Ct Act § 812 [].]; § 832; Penal Law § 120.00; Matter of Ford v Pitts, 30 AD3d 419; Matter of Strully v Schwartz, 255 AD2d 593). However, a fair preponderance of the credible evidence adduced at the fact-finding hearing supports the hearing court's finding that the appellant committed the family offenses of harassment in the second degree ( see Penal Law § 240.26; Matter of Fleming v Fleming, 52 AD3d 600; Matter of Larson v Gilliam, 49 AD3d 650; Matter of Wallace v Wallace, 45 AD3d 599), attempted assault in the third degree ( see Penal Law §§ 110.00, 120.00; Matter of Wright v Wright, 4 AD3d 683, 684), menacing in the second degree ( see Penal Law § 120.14; Matter of Onuoha v Onuoha, 28 AD3d 563), and menacing in the third degree ( see Penal Law § 120.15; Matter of Sinclair v Batista-Mall, 50 AD3d 1044; Matter of Mazzola v Mazzola, 280 AD2d 674), warranting the issuance of an order of protection.
The appellant's remaining contentions are either unpreserved for appellate review or not properly before this Court.