Opinion
2018–10084 Docket No. O–3671/17
06-19-2019
In the Matter of Yuliya ESIPOVA, Respondent, v. Alexei GOLOUBEV, Appellant.
Marion C. Perry, Brooklyn, NY, for appellant. Michael Fineman, New York, NY, for respondent.
Marion C. Perry, Brooklyn, NY, for appellant.
Michael Fineman, New York, NY, for respondent.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, the father appeals from an order of protection of the Family Court, Kings County (Jennifer Mitek, Ct. Atty. Ref.), dated July 13, 2018. The order of protection, after a hearing, and upon a finding that the father committed the family offense of harassment in the second degree, inter alia, directed the father to refrain from communicating with the mother for a period up to and including July 12, 2019, subject to court-ordered parental access with the parties' child. ORDERED that the order of protection is affirmed, without costs or disbursements. In a family offense proceeding, the allegations must be "supported by a fair preponderance of the evidence" ( Family Ct. Act § 832 ; see Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 986 N.Y.S.2d 350 ; Matter of Zina L. v. Eldred L., 113 A.D.3d 852, 853, 979 N.Y.S.2d 542 ; Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 975 N.Y.S.2d 894 ). "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 Tulshi v. Tulshi, 118 A.D.3d at 716, 986 N.Y.S.2d 350 ). The determination should not be disturbed unless clearly unsupported by the record (see Matter of Miloslau v. Miloslau, 112 A.D.3d at 632, 975 N.Y.S.2d 894 ).
The mother established, by a fair preponderance of the credible evidence, that the father committed acts which constituted the family offense of harassment in the second degree, warranting the issuance of an order of protection, when, with the intent to harass, annoy, or alarm another person, he engaged in a course of conduct that alarmed and seriously annoyed the mother, and which served no legitimate purpose (see Family Ct. Act § 812[1] ; Penal Law § 240.26[3] ; Matter of Pochat v. Pochat, 125 A.D.3d 660, 661–662, 3 N.Y.S.3d 112 ).
While the Family Court was presented with sharply conflicting accounts by the parties regarding the subject incidents, we discern no basis to disturb its determination to credit the testimony of the mother (see Matter of Musheyev v. Musheyev, 126 A.D.3d 800, 2 N.Y.S.3d 807 ; see generally Matter of Hon v. Tin Yat Chin, 117 A.D.3d 946, 985 N.Y.S.2d 904 ; Matter of Kaur v. Singh, 73 A.D.3d 1178, 900 N.Y.S.2d 895 ).
We reject the father's contention that his conduct was protected by the First Amendment (see People v. Shack, 86 N.Y.2d 529, 535–536, 634 N.Y.S.2d 660, 658 N.E.2d 706 ).
Contrary to the father's further contention, the Family Court providently exercised its discretion in permitting the mother to amend the petition to conform to the evidence presented at the hearing (see CPLR 3025[c] ).
MASTRO, J.P., MILLER, BARROS and CHRISTOPHER, JJ., concur.