Opinion
2012-10-17
In the Matter of Stephen TESTA, respondent, v. Laura STRICKLAND, appellant.
Warren S. Hecht, Forest Hills, N.Y., for appellant. Dawn M. Shammas, Harrison, N.Y., attorney for the children.
Warren S. Hecht, Forest Hills, N.Y., for appellant. Dawn M. Shammas, Harrison, N.Y., attorney for the children.
In a family offense proceeding pursuant to Family Court Act article 8, Laura Strickland appeals from (1) an order of protection of the Family Court, Orange County (Bivona, J.), dated July 13, 2011, directing her, inter alia, to stay away from the parties' two sons, and (2) an order of the same court dated July 25, 2011, which, after a hearing, and upon a finding that she had committed the family offense of aggravated harassment, granted the petition, found that she had committed the offense of harassment in the second degree, and continued the term of a temporary order of protection dated May 24, 2011, until July 12, 2013.
ORDERED that the order of protection dated July 13, 2011, and the order dated July 25, 2011, are reversed, on the facts, without costs or disbursements, the petition is denied, and the proceeding is dismissed.
“ ‘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 and will not be disturbed if supported by the record’ ” (Matter of Salazar v. Melendez, 97 A.D.3d 754, 755, 948 N.Y.S.2d 673, quoting Matter of Richardson v. Richardson, 80 A.D.3d 32, 43–44, 910 N.Y.S.2d 149). At a fact-finding hearing pursuant to Family Court Act article 8, the petitioner has the burden of establishing the allegations contained in the petition by a “fair preponderance of the evidence” (Family Ct. Act § 832; see Matter of Foxworth v. DeJesus, 74 A.D.3d 1064, 903 N.Y.S.2d 114).
Here, the Family Court, after a hearing, made a finding on the record that the appellant had committed the offense of aggravated harassment. However, the orderdated July 25, 2011, stated that she had committed the offense of harassment in the second degree. Where there is a conflict between an order or judgment and the court's decision upon which it was based, the decision controls ( see Matter of Harmon, 73 A.D.3d 1059, 1061, 900 N.Y.S.2d 761;McLoughlin v. McLoughlin, 63 A.D.3d 1017, 1019–1020, 882 N.Y.S.2d 203).
The petitioner did not establish by a fair preponderance of the evidence that the appellant's acts of sending several text messages to the parties' eldest son in May 2011 constituted aggravated harassment in the second degree ( see Family Ct. Act § 812[1]; Penal Law § 240.30; Matter of Wendy Q. v. Jason Q., 94 A.D.3d 1371, 1373, 943 N.Y.S.2d 255;Matter of Hasbrouck v. Hasbrouck, 59 A.D.3d 621, 622, 875 N.Y.S.2d 86). In any event, the evidence also was not sufficient to establish by a fair preponderance of the evidence that her acts constituted harassment in the second degree ( see Family Ct. Act § 812[1]; Penal Law § 240.26[3]; Matter of Ungar v. Ungar, 80 A.D.3d 771, 772, 915 N.Y.S.2d 614).
Since the record does not support the Family Court's determination that the appellant committed family offenses warranting the issuance of the order of protection, the order of protection, as well as the order dated July 25, 2011, must be reversed, the petition denied, and the proceeding dismissed ( see 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 at 622, 875 N.Y.S.2d 86;Matter of Cavanaugh v. Madden, 298 A.D.2d 390, 751 N.Y.S.2d 225).
In light of our determination, the appellant's remaining contentions have been rendered academic.