Opinion
2013-06-5
In the Matter of Adam MAIORINO, Sr., respondent, v. Adam MAIORINO, Jr., appellant.
Elliot Green, Brooklyn, N.Y., for appellant. Zvi Ostrin, New York, N.Y., for respondent.
Elliot Green, Brooklyn, N.Y., for appellant.Zvi Ostrin, New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Adam Maiorino, Jr., appeals (1), as limited by his brief, from so much of an order of fact-finding of the Family Court, Kings County (Hepner, J.), dated February 21, 2012, as, after a fact-finding hearing, found that he committed the family offenses of attempted assault in the third degree, harassment in the second degree (two offenses), menacing in the third degree, and disorderly conduct, and (2) from an order of protection of the same court dated May 22, 2012, which, after a dispositional hearing, inter alia, directed him to refrain from assaulting, stalking, or harassing the petitioner.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order of fact-finding as found that Adam Maiorino, Jr., committed the family offenses of attempted assault in the third degree, harassment in the second degree (two offenses), menacing in the third degree, and disorderly conduct is deemed to be an application for leave to appeal from that portion of the order of fact-finding, and leave to appeal is granted ( seeFamily Ct. Act § 1112[a] ); and it is further,
ORDERED that the order of fact-finding is modified, on the facts, by deleting the provision thereof finding that Adam Maiorino, Jr., committed the family offense of disorderly conduct; as so modified, the order of fact-finding is affirmed insofar as appealed from, without costs or disbursements; and it is further,
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 Thomas v. Thomas, 72 A.D.3d 834, 835, 898 N.Y.S.2d 495;see Family Ct. Act § 832). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court” (Matter of Kanterakis v. Kanterakis, 102 A.D.3d 784, 785, 957 N.Y.S.2d 890 [internal quotation marks omitted] ). “The Family 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” ( id.; see Matter of Cruz v. Rodriguez, 96 A.D.3d 838, 946 N.Y.S.2d 480;Matter of Lamparillo v. Lamparillo, 84 A.D.3d 1381, 924 N.Y.S.2d 548).
Here, a fair preponderance of the credible evidence adduced at the fact-finding hearing supports a finding that the appellant committed two family offenses of harassment in the second degree ( see Penal Law § 240.26[1]; Matter of Scanziani v. Hairston, 100 A.D.3d 1007, 1008, 955 N.Y.S.2d 162;Matter of Sperling v. Sperling, 96 A.D.3d 1067, 946 N.Y.S.2d 877), as well as the family offenses of attempted assault in the third degree ( see Penal Law §§ 110.00, 120.00[1]; Matter of Panico v. Panico, 100 A.D.3d 907, 908, 955 N.Y.S.2d 125;Matter of Gray v. Gray, 55 A.D.3d 909, 910, 867 N.Y.S.2d 110), and menacing in the third degree ( see Penal Law § 120.15; Matter of Baginski v. Rostkowski, 96 A.D.3d 1051, 946 N.Y.S.2d 886;Matter of Sinclair v. Batista–Mall, 50 A.D.3d 1044, 854 N.Y.S.2d 906). However, there is insufficient evidence to establish that the appellant committed the family offense of disorderly conduct ( see Penal Law § 240.20; Matter of Aruti v. Aruti, 88 A.D.3d 700, 701, 930 N.Y.S.2d 481;Matter of Hasbrouck v. Hasbrouck, 59 A.D.3d 621, 622, 875 N.Y.S.2d 86;Matter of Bartley v. Bartley, 48 A.D.3d 678, 678–679, 852 N.Y.S.2d 326).
Under the circumstances of this case, we find no basis to disturb the order of protection( see Matter of Jackson v. Idlett, 103 A.D.3d 723, 959 N.Y.S.2d 706).