Opinion
05-31-2017
In the Matter of Luisa FUEL, respondent, v. Carlos CHACA, appellant.
Lewis S. Calderon, Jamaica, NY, for appellant.
Lewis S. Calderon, Jamaica, NY, for appellant.
Appeals from (1) an order of fact-finding and disposition of the Family Court, Kings County (Dean T. Kusakabe, J.), dated March 29, 2016, and (2) an order of protection of that court also dated March 29, 2016. The order of fact-finding and disposition, after a hearing, granted the family offense petition against the appellant. The order of protection directed the appellant to refrain from certain conduct with respect to the petitioner until and including March 28, 2018.
ORDERED that the order of fact-finding and disposition and the order of protection are affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding seeking an order of protection against the appellant, who is her former spouse. Following a fact-finding hearing, the Family Court determined that the appellant had committed the family offenses of attempted assault in the third degree, harassment in the second degree, and menacing in the third degree. After a dispositional hearing, the court issued a final order of protection directing the appellant to refrain from certain conduct with respect to the petitioner until and including March 28, 2018.
" ‘In a family offense proceeding, the petitioner has the burden of establishing, by a "fair preponderance of the evidence," that the charged conduct was committed as alleged in the petition’ " (Matter of Bah v. Bah, 112 A.D.3d 921, 921–922, 978 N.Y.S.2d 301, quoting Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting 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 its determinations regarding the credibility of witnesses are entitled to great weight on appeal" (Matter of Nusbaum v. Nusbaum, 59 A.D.3d 725, 725, 874 N.Y.S.2d 378 [citations and internal quotation marks omitted] ).
Here, a fair preponderance of the credible evidence adduced at the fact-finding hearing supports a finding that the appellant committed the family offenses of attempted assault in the third degree, harassment in the second degree, and menacing in the third degree, warranting the issuance of an order of protection against him (Penal Law §§ 110.00, 120.00[1] ; 120.15, 240.26[1]; see Matter of Maiorino v. Maiorino, 107 A.D.3d 717, 965 N.Y.S.2d 885 ; Matter of Panico v. Panico, 100 A.D.3d 907, 908, 955 N.Y.S.2d 125 ; Matter of Akter v. Patwary, 80 A.D.3d 759, 916 N.Y.S.2d 779 ). Contrary to the appellant's contention, the Family Court did not improperly rely upon allegations not charged in the petition (see Matter of Charrat v. Jeanty, 146 A.D.3d 947, 948, 45 N.Y.S.3d 554 ; cf. Matter of Kiani v. Kiani, 134 A.D.3d 1036, 1038, 22 N.Y.S.3d 520 ; Matter of Bessent v. Bessent, 113 A.D.3d 847, 848, 979 N.Y.S.2d 543 ; Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63 ).
MASTRO, J.P., HALL, AUSTIN and BARROS, JJ., concur.