Opinion
2013-12-11
In the Matter of Janet O. Retto MARTINEZ, respondent, v. Epie J. Otero AVILES, appellant.
Robert Hausner, Garden City, N.Y., for appellant. Jeffrey C. Bluth, Brooklyn, N.Y., attorney for the child.
Robert Hausner, Garden City, N.Y., for appellant. Jeffrey C. Bluth, Brooklyn, N.Y., attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, the father appeals from an order of protection of the Family Court, Queens County (Lebwohl, J.), dated December 12, 2012, which, after a hearing, and upon a finding that he committed the family offenses of disorderly conduct, harassment in the second degree, aggravated harassment in the second degree, and assault in the third degree, directed him, inter alia, to stay away from the mother until and including November 8, 2014.
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 Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” ( Matter of Bibolova v. Radu, 82 A.D.3d 1222, 1223, 919 N.Y.S.2d 388; see Matter of Scioscia v. Scioscia, 89 A.D.3d 739, 740, 931 N.Y.S.2d 892; Matter of Lallmohamed v. Lallmohamed, 23 A.D.3d 562, 806 N.Y.S.2d 622). Here, contrary to the Family Court's determination, the mother did not establish the family offense of disorderly conduct. She failed to show that the father's conduct was committed with the intent to cause, or recklessly posed a risk of causing, public inconvenience, annoyance, or alarm ( seePenal Law § 240.20; Matter of Cassie v. Cassie, 109 A.D.3d 337, 342, 344, 969 N.Y.S.2d 537; see also People v. Baker, 20 N.Y.3d 354, 360, 960 N.Y.S.2d 704, 984 N.E.2d 902; cf. Matter of Banks v. Opoku, 109 A.D.3d 470, 970 N.Y.S.2d 562). However, a fair preponderance of the credible evidence supported the Family Court's determination that, between April 2009 and the filing of the petition in June 2011, the father committed the family offenses of harassment in the second degree, aggravated harassment in the second degree, and assault in the third degree, thus warranting the issuance of an order of protection ( seeFamily Ct. Act §§ 812, 832; Penal Law §§ 120.00, 240.26[1]; 240.30; Matter of Opray v. Fitzharris, 84 A.D.3d 1092, 1093, 924 N.Y.S.2d 421; Matter of Kaur v. Singh, 73 A.D.3d 1178, 900 N.Y.S.2d 895; McGuffog v. Ginsberg, 266 A.D.2d 136, 699 N.Y.S.2d 26; see also Matter of Kondor v. Kondor, 109 A.D.3d 660, 971 N.Y.S.2d 21; Matter of Draxler v. Davis, 11 A.D.3d 760, 783 N.Y.S.2d 425).
The father's remaining contention is without merit. MASTRO, J.P., LOTT, AUSTIN and HINDS–RADIX, JJ., concur.