Opinion
Nos. 2023-04861 2023-04863 Docket No. O-446-22
08-07-2024
In the Matter of Anthony R. Lynch, Sr., etc., Respondent, v. Luis Jimenez, Appellant.
Kelley M. Enderley, Poughkeepsie, NY, for appellant. Gary E. Lane, Poughkeepsie, NY, attorney for the children.
Kelley M. Enderley, Poughkeepsie, NY, for appellant.
Gary E. Lane, Poughkeepsie, NY, attorney for the children.
ANGELA G. IANNACCI, J.P., PAUL WOOTEN, LARA J. GENOVESI, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 8, Luis Jimenez appeals from (1) an order of fact-finding and disposition of the Family Court, Dutchess County (Tracy C. MacKenzie, J.), dated February 17, 2023, and (2) an order of protection of the same court, also dated February 17, 2023. The order of fact-finding and disposition, after a hearing, found that Luis Jimenez committed the family offenses of harassment in the second degree and disorderly conduct and directed him to comply with the terms set forth in the order of protection for a period not to exceed two years. The order of protection, inter alia, directed Luis Jimenez to stay away from the petitioner and the petitioner's children for a period up to and including February 17, 2025.
ORDERED that the order of fact-finding and disposition and the order of protection are affirmed, without costs or disbursements.
The petitioner, Anthony R. Lynch, Sr. (hereinafter the father), and Carol Pasquale (hereinafter the mother) were married and have two children. They divorced in October 2021, at which time the children continued to reside with the mother. In February 2022, the father commenced this family offense proceeding against Luis Jimenez, the mother's boyfriend. Following a hearing, the Family Court found that Jimenez committed the family offenses of harassment in the second degree and disorderly conduct and directed him to comply with the terms set forth in an order of protection for a period not to exceed two years. The court issued an order of protection, inter alia, directing Jimenez to stay away from the father and the children and refrain from communicating with them up to and including February 17, 2025. Jimenez appeals from the order of fact-finding and disposition and the order of protection.
"In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence" (Matter of Lederman v Lederman, 208 A.D.3d 483, 484 [internal quotation marks omitted]; see Family Ct Act § 832; Matter of Cook v Berehowsky, 211 A.D.3d 727, 728). "The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court" (Matter of Lederman v Lederman, 208 A.D.3d at 484 [internal quotation marks omitted]; see Matter of Paek v Alicea, 225 A.D.3d 877, 878; Matter of Safir v Safir, 214 A.D.3d 888, 889). "The Family Court's determination as to the credibility of witnesses is entitled to great weight and, if supported by the record, will not be disturbed on appeal" (Matter of Lederman v Lederman, 208 A.D.3d at 484 [internal quotation marks omitted]). "'In reviewing a determination made after a nonjury trial or hearing, the power of the Appellate Division is as broad as that of the trial or hearing court, and it may render the judgment that it finds warranted by the facts, taking into account that in a close case the trial or hearing judge had the advantage of seeing and hearing the witnesses'" (id., quoting Matter of Griffith v Joseph, 173 A.D.3d 868, 868-869 [internal quotation marks omitted]).
Here, a fair preponderance of the evidence adduced at the hearing supports the Family Court's determination that Jimenez committed acts constituting the family offenses of harassment in the second degree (see Penal Law § 240.26[3]) and disorderly conduct (see id. § 240.20; Matter of Cook v Berehowsky, 211 A.D.3d at 728; see generally Matter of Cassie v Cassie, 109 A.D.3d 337, 342-344). The court's determination that Jimenez committed those family offenses was based upon its assessment of the credibility of the parties and is supported by the record (see Family Ct Act § 812; Matter of Townes v Diggs, 216 A.D.3d 1104, 1105; Matter of Zhuo Hong Zheng v Hsin Cheng, 144 A.D.3d 1166, 1167).
Additionally, contrary to Jimenez's contention, the Family Court properly included the children as protected persons in the order of protection, as the evidence demonstrated that doing so was "necessary to further the purposes of protection" (Family Ct Act § 842[l]; see Matter of Cook v Berehowsky, 211 A.D.3d at 728; Matter of Lengiewicz v Lengiewicz, 167 A.D.3d 608, 609).
Jimenez's remaining contentions are without merit.
IANNACCI, J.P., WOOTEN, GENOVESI and VENTURA, JJ., concur.