Opinion
2021–07943 Docket Nos. O–22383–19, V–4190–18, V–4191–18
08-16-2023
In the Matter of Dennis G. WEDRA, Jr., appellant, v. Assunta GRECO, respondent.
Karen M. Jansen, White Plains, NY, for appellant. Gary E. Eisenberg, White Plains, NY, attorney for the child Stefania. Ronna L. DeLoe, Larchmont, NY, attorney for the child Liangela.
Karen M. Jansen, White Plains, NY, for appellant.
Gary E. Eisenberg, White Plains, NY, attorney for the child Stefania.
Ronna L. DeLoe, Larchmont, NY, attorney for the child Liangela.
FRANCESCA E. CONNOLLY, J.P., LARA J. GENOVESI, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act articles 6 and 8, the father appeals from an order of the Family Court, Westchester County (Rachel Hahn, J.), dated October 22, 2021. The order, insofar as appealed from, after a hearing, in effect, denied the father's family offense petition and dismissed that proceeding.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
As is relevant to this appeal, the father commenced a proceeding pursuant to Family Court Act article 8 alleging that the mother committed various family offenses against one of their children. After a hearing, the Family Court, inter alia, in effect, denied the father's family offense petition and dismissed that proceeding. The father appeals. In a family offense proceeding, 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 Walsh v. Desroches, 118 A.D.3d 813, 814, 987 N.Y.S.2d 231 ). 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 (see Matter of Walsh v. Desroches, 118 A.D.3d at 814, 987 N.Y.S.2d 231 ; Matter of Harry v. Harry, 115 A.D.3d 858, 858, 982 N.Y.S.2d 379 ). " ‘Only competent, material and relevant evidence may be admitted in a fact-finding hearing’ " ( Matter of Jarrett v. Jarrett, 102 A.D.3d 695, 695, 956 N.Y.S.2d 898, quoting Family Ct Act § 834 ).
Here, the evidence presented in support of the petition, including the father's testimony regarding statements made to him by his children, and a report from Child Protective Services, consisted primarily of inadmissible hearsay. The father, therefore, failed to establish the allegations in the petition by competent evidence (see Family Ct Act § 834 ; Matter of Walsh v. Desroches, 118 A.D.3d 813, 814, 987 N.Y.S.2d 231 ; Matter of Jarrett v. Jarrett, 102 A.D.3d at 695, 956 N.Y.S.2d 898 ).
Contrary to the father's contention, the Family Court properly ruled that certain hearsay statements were not admissible under the excited utterance exception to the hearsay rule (see People v. Cantave, 21 N.Y.3d 374, 381–382, 971 N.Y.S.2d 237, 993 N.E.2d 1257 ; Matter of O'Connor v. O'Connor, 202 A.D.3d 689, 690, 158 N.Y.S.3d 604 ; Matter of Johnson v. Johnson, 146 A.D.3d 954, 955, 45 N.Y.S.3d 551 ).
Accordingly, the Family Court properly, in effect, denied the father's family offense petition and dismissed that proceeding.
The remaining contentions of the respective attorneys for the children need not be reached in light of the foregoing.
CONNOLLY, J.P., GENOVESI, FORD and WAN, JJ., concur.