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upholding family court's harassment in the second degree finding; respondent repeatedly called petitioner, yelled at her and demanded money even though petitioner told him to stop
Summary of this case from Of v. WesternOpinion
12-14-2016
In the Matter of Ana ACEVEDO, respondent, v. Robert ACEVEDO, appellant.
Linda Braunsberg, Staten Island, NY, for appellant. Geanine Towers, P.C., Brooklyn, NY, for respondent.
Linda Braunsberg, Staten Island, NY, for appellant.
Geanine Towers, P.C., Brooklyn, NY, for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Appeal from an order of protection of the Family Court, Kings County (Dean Kusakabe, J.), dated October 8, 2015. The order, upon a finding that the appellant committed family offenses, made after a hearing, directed him to stay away from the petitioner until and including October 7, 2017.
ORDERED that the order of protection is affirmed, without costs or disbursements.
The petitioner filed a family offense petition in Family Court seeking an order of protection against the appellant, who is her adult son. Following a fact-finding hearing, the Family Court determined that the appellant had committed the family offenses of aggravated harassment in the second degree and harassment in the second degree, and issued an order of protection, directing the appellant to stay away from the petitioner until and including October 7, 2017.
In a family offense proceeding, the allegations must be "supported by a fair preponderance of the evidence" (Family Ct. Act § 832 ; see Matter of Zina L. v. Eldred L., 113 A.D.3d 852, 853, 979 N.Y.S.2d 542 ; Matter of Bah v. Bah, 112 A.D.3d 921, 922, 978 N.Y.S.2d 301 ). "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 Zina L. v. Eldred L., 113 A.D.3d at 853, 979 N.Y.S.2d 542 ; see Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793 ). The determination should not be disturbed unless clearly unsupported by the record (see Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 632, 975 N.Y.S.2d 894 ). "In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom" (Matter of Mamantov v. Mamantov, 86 A.D.3d 540, 541, 927 N.Y.S.2d 140 [internal quotation marks omitted] ).
Here, the Family Court properly denied the appellant's motion, made at the close of the case, to dismiss for failure to establish a prima facie case. Accepting the evidence proffered by the petitioner in support of her petition as true and giving it the benefit of every reasonable inference, the petitioner established, prima facie, that the appellant committed the family offenses of aggravated harassment in the second degree (see Penal Law § 240.30[2] ; Matter of Drury v. Drury, 90 A.D.3d 754, 754, 934 N.Y.S.2d 337 ; People v. Brown, 61 A.D.3d 1007, 1009, 877 N.Y.S.2d 482 ), and harassment in the second degree (see Penal Law § 240.26[3] ; People v. Wood, 59 N.Y.2d 811, 812, 464 N.Y.S.2d 738, 451 N.E.2d 485 ; Matter of Ramdhanie v. Ramdhanie, 129 A.D.3d 737, 738, 9 N.Y.S.3d 583 ).
Furthermore, the Family Court properly credited the petitioner's testimony and determined, based upon a fair preponderance of the evidence, that the appellant committed acts which constituted the family offenses of aggravated harassment in the second degree and harassment in the second degree (see Family Ct. Act §§ 812[1], 832 ; Penal Law §§ 240.30[2], 240.26 [3] ; People v. Wood, 59 N.Y.2d at 812, 464 N.Y.S.2d 738, 451 N.E.2d 485 ; Matter of Ramdhanie v. Ramdhanie, 129 A.D.3d at 738, 9 N.Y.S.3d 583 ; Matter of Drury v. Drury, 90 A.D.3d at 754, 934 N.Y.S.2d 337 ; People v. Brown, 61 A.D.3d at 1009, 877 N.Y.S.2d 482 ), warranting the issuance of the two-year order of protection (see Family Ct. Act § 841 ). The evidence established that from November 2014 to March 2015, the appellant repeatedly called the petitioner and demanded money from her. During the calls, he would scream at her. The appellant admitted that the petitioner had told him to stop calling her and to stop asking her for money, yet he persisted in doing both. This course of conduct, which continued despite his knowledge that the calls were unwanted, demonstrated his intent to harass and annoy and established that the calls were made for no legitimate purpose. The court's determination was therefore supported by the record.
The appellant's contention that the Family Court erred in taking judicial notice of a prior order of protection is unpreserved for appellate review and, in any event, without merit.
The appellant's remaining contentions are without merit.