Opinion
2012-12-26
In the Matter of Keisha CLARKE–GOLDING, respondent, v. Jeffrey GOLDING, appellant.
Jessica Sin, Little Neck, N.Y., for appellant. Ralph Duthely, Jamaica, N.Y., for respondent.
Jessica Sin, Little Neck, N.Y., for appellant. Ralph Duthely, Jamaica, N.Y., for respondent.
Jonathan H. Shim, Jamaica, N.Y., attorney for the child.
DANIEL D. ANGIOLILLO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, Jeffrey Golding appeals from an order of protection of the Family Court, Queens County (Lebwohl, J.), dated December 14, 2011, which, after a hearing, and upon a finding that he committed certain family offenses within the meaning of Family Court Act § 812, directed him, inter alia, to stay away from the petitioner until and including December 14, 2014.
ORDERED that the order of protection is modified, on the law and the facts, by deleting the provision thereof directing that the order of protection shall remain in effect until and including December 14, 2014, and substituting therefor a provision directing that the order of protection shall remain in effect until and including December 14, 2013; as so modified, the order of protection is affirmed, without costs or disbursements.
“The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court” ( Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 1141, 898 N.Y.S.2d 585;seeFamily Ct. Act §§ 812, 832; Matter of Armstrong v. Ewing, 82 A.D.3d 1092, 919 N.Y.S.2d 343;Matter of Kaur v. Singh, 73 A.D.3d 1178, 900 N.Y.S.2d 895), “and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” ( Matter of Creighton v. Whitmore, 71 A.D.3d at 1141, 898 N.Y.S.2d 585;see Matter of Kaur v. Singh, 73 A.D.3d at 1178, 900 N.Y.S.2d 895).
Here, a fair preponderance of the credible evidence did not support the Family Court's determination that the appellant committed the family offense of assault in the third degree ( seeFamily Ct. Act §§ 812[1], 832; Penal Law § 120.00; Matter of Gray v. Gray, 55 A.D.3d 909, 910, 867 N.Y.S.2d 110;Matter of Ford v. Pitts, 30 A.D.3d 419, 817 N.Y.S.2d 332;Matter of Strully v. Schwartz, 255 A.D.2d 593, 680 N.Y.S.2d 871). However, a preponderance of the credible evidence adduced at the fact-finding hearing supports the Family Court's finding that the appellant committed the family offense of menacing in the third degree (Penal Law § 120.15; Matter of Sinclair v. Batista–Mall, 50 A.D.3d 1044, 854 N.Y.S.2d 906;Matter of Mazzola v. Mazzola, 280 A.D.2d 674, 720 N.Y.S.2d 838), warranting the issuance of an order of protection.
However, the Family Court failed to set forth any finding of aggravating circumstances “on the record and upon the order of protection” as is required to issue an order of protection with a duration exceeding two years (Family Ct. Act § 842), and insufficient evidence was presented at the hearing to support any finding of aggravating circumstances ( seeFamily Ct. Act § 827[a][vii]; Matter of Del Canto v. Behrens, 95 A.D.3d 1211, 945 N.Y.S.2d 148;Matter of Drury v. Drury, 90 A.D.3d at 754, 755, 934 N.Y.S.2d 337). In particular, the record does not demonstrate “an immediate and ongoing danger to the petitioner” (Family Ct. Act § 827[a][vii] ). Thus, the duration of the order of protection may not exceed two years ( see Matter of Brito v. Vasquez, 93 A.D.3d 842, 941 N.Y.S.2d 634;Matter of Drury v. Drury, 90 A.D.3d at 755, 934 N.Y.S.2d 337;Matter of Gelardi v. Gelardi, 62 A.D.3d 701, 702, 877 N.Y.S.2d 693). Accordingly, we modify the order of protection to direct that it remain in effect until and including December 14, 2013.