Opinion
No. 2023-03769 2023-03773 Docket No. O-4267-22
03-20-2024
In the Matter of Justin Williams, respondent, v. Delis Rodriguez, appellant.
John R. Lewis, Sleepy Hollow, NY, for appellant. Alex Smith, Middletown, NY, for respondent.
John R. Lewis, Sleepy Hollow, NY, for appellant.
Alex Smith, Middletown, NY, for respondent.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 8, Delis Rodriguez appeals from (1) an order of the Family Court, Orange County (Victoria B. Campbell, J.), dated April 12, 2023, and (2) an order of protection of the same court also dated April 12, 2023. The order, after a hearing, found that Delis Rodriguez committed the family offense of harassment in the second degree and directed the issuance of an order of protection. The order of protection, inter alia, directed Delis Rodriguez to stay away from the petitioner until and including April 12, 2024.
ORDERED that the order and the order of protection are affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against Delis Rodriguez. The parties, who were never married, had an intimate relationship, which Rodriguez alleged resulted in the birth of a child. After a hearing, the Family Court found that Rodriguez committed the family offense of harassment in the second degree and issued an order of protection, inter alia, directing Rodriguez to stay away from the petitioner until and including April 12, 2024. Rodriguez appeals.
"'In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence'" (Matter of Silverman v Leibowitz, 212 A.D.3d 635, 636, quoting Matter of Buchovska v Kamolov, 209 A.D.3d 857, 857; see Family Ct Act § 832). "'The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal'" (Matter of Acevedo v Acevedo, 145 A.D.3d 773, 774, quoting Matter of Zina L. v Eldred L., 113 A.D.3d 852, 853).
A person commits harassment in the second degree when that person, "with intent to harass, annoy or alarm another person[,]... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or... engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose" (Penal Law § 240.26[1], [3]; see Matter of Townes v Diggs, 216 A.D.3d 1104, 1105).
Contrary to Rodriguez's contention, a fair preponderance of the evidence adduced at the hearing established that she committed the family offense of harassment in the second degree (Penal Law § 240.26). "Where, as here, the court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination will not be disturbed unless clearly unsupported by the record" (Matter of Mohammed v Mohammed, 174 A.D.3d 615, 615-616; see Matter of Henderson v Henderson, 137 A.D.3d 911, 911). The Family Court's determination that Rodriguez committed the family offense of harassment in the second degree was based upon its assessment of the credibility of the parties and is supported by the record (see Matter of Townes v Diggs, 216 A.D.3d at 1105; Matter of Acevedo v Acevedo, 145 A.D.3d at 774). Therefore, the issuance of an order of protection against Rodriguez was warranted (see Matter of Alfred v Brown, 181 A.D.3d 889).
BRATHWAITE NELSON, J.P., MILLER, MALTESE and LOVE, JJ., concur.