Opinion
2012-11-9
In the Matter of Patricia PETRIE, Petitioner–Respondent, v. Donald PETRIE, Jr., Respondent–Appellant.
Appeal from an order of the Family Court, Yates County (W. Patrick Falvey, J.), entered August 11, 2011 in a proceeding pursuant to Family Court Act article 8. The order granted a protective order to petitioner.
Cara A. Waldman, Fairport, for Respondent–Appellant.
MEMORANDUM:
Respondent husband appeals from an order of protection entered upon a finding that he committed the family offenses of harassment in the second degree (Penal Law § 240.26[1] ) and menacing in the third degree (§ 120.15) against petitioner wife. Initially, we note that the order of protection has expired, and we thus generally would dismiss the appeal as moot ( see Matter of Kristine Z. v. Anthony C., 43 A.D.3d 1284, 1284–1285, 845 N.Y.S.2d 581,lv. denied10 N.Y.3d 705, 857 N.Y.S.2d 37, 886 N.E.2d 802). Here, however, the husband challenges only Family Court's finding that he committed two family offenses and, “ ‘in light of enduring consequences which may potentially flow from an adjudication that a party has committed a family offense,’ the appeal from so much of the order ... as made that adjudication is not academic” (Matter of Hunt v. Hunt, 51 A.D.3d 924, 925, 858 N.Y.S.2d 724;see Matter of Samora v. Coutsoukis, 292 A.D.2d 390, 391, 739 N.Y.S.2d 721,lv.denied 99 N.Y.2d 506, 755 N.Y.S.2d 712, 785 N.E.2d 734).
Contrary to the husband's contention, however, we conclude that the wife established by a preponderance of the evidence that he engaged in acts constituting harassment in the second degree and menacing in the third degree ( see Matter of Baginski v. Rostkowski, 96 A.D.3d 1051, 1051–1052, 946 N.Y.S.2d 886;see also Matter of Chase–Triou v. Triou, 96 A.D.3d 1699, 1699, 946 N.Y.S.2d 919;Matter of Beck v. Butler, 87 A.D.3d 1410, 1411, 930 N.Y.S.2d 515,lv. denied18 N.Y.3d 801, 938 N.Y.S.2d 858, 962 N.E.2d 283). The court's “assessment of the credibility of the witnesses is entitled to great weight, and the court was entitled to credit the testimony of the wife over that of the husband” (Matter of Scroger v. Scroger, 68 A.D.3d 1777, 1778, 890 N.Y.S.2d 851,lv. denied 14 N.Y.3d 705, 899 N.Y.S.2d 129, 925 N.E.2d 933).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.