Opinion
2014-04-30
In the Matter of Laneska MARTE, appellant, v. Miguel CARABALLO, respondent.
Joseph H. Nivin, Jamaica, N.Y., for appellant. Ade Agbayewa, Fresh Meadows, N.Y., for respondent.
Joseph H. Nivin, Jamaica, N.Y., for appellant. Ade Agbayewa, Fresh Meadows, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Arias, J.), dated August 13, 2013, which, after a hearing, denied the petition and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
“In a family offense proceeding, the petitioner has the burden of establishing, by a ‘fair preponderance of the evidence,’ that the charged conduct was committed as alleged in the petition” (Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Ct. Act § 832; see Matter of Testa v. Strickland, 99 A.D.3d 917, 917, 951 N.Y.S.2d 910). “The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court” (Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 1141, 898 N.Y.S.2d 585;see Family Ct. Act §§ 812, 832; Matter of Yalvac v. Yalvac, 83 A.D.3d 853, 854, 920 N.Y.S.2d 689), whose “determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Creighton v. Whitmore, 71 A.D.3d at 1141, 898 N.Y.S.2d 585;see Matter of Yalvac v. Yalvac, 83 A.D.3d at 854, 920 N.Y.S.2d 689).
Here, the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent's act of allegedly sending her a text message constituted the family offense of aggravated harassment in the second degree ( see Family Ct. Act § 812[1]; Penal Law § 240.30[1] ). Additionally, the petitioner failed to establish, by a fair preponderance of the evidence, that certain alleged conduct by the respondent in 2003 constituted the family offense of harassment in the second degree ( see Family Ct. Act § 812[1]; Penal Law § 240.26). The Family Court's determination that the petitioner's testimony was lacking in credibility is entitled to great weight on appeal, as it is supported by the record ( see Matter of Bah v. Bah, 112 A.D.3d 921, 922, 978 N.Y.S.2d 301;see generally Matter of Shields v. Brown, 107 A.D.3d 1005, 1006, 966 N.Y.S.2d 900;Matter of Yalvac v. Yalvac, 83 A.D.3d at 854, 920 N.Y.S.2d 689).
Accordingly, the Family Court properly denied the petition and dismissed the proceeding. BALKIN, J.P., DICKERSON, ROMAN and MILLER, JJ., concur.