Opinion
No. 491 CAF 21-00435
07-01-2022
IN THE MATTER OF CHAD WASHINGTON, PETITIONER-APPELLANT, v. ELMORE DAVIS, RESPONDENT-RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR PETITIONER-APPELLANT. LAURIN R. HADDAD, SYRACUSE, FOR RESPONDENT-RESPONDENT. SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (THOMAS M. LEITH OF COUNSEL), FOR PETITIONER-APPELLANT.
LAURIN R. HADDAD, SYRACUSE, FOR RESPONDENT-RESPONDENT.
SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILD.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
Appeal from an order of the Family Court, Onondaga County (Karen Stanislaus, R.), entered October 7, 2020 in a proceeding pursuant to Family Court Act article 8. The order dismissed the petition and vacated a temporary order of protection.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 8, petitioner appeals from an order that, inter alia, dismissed his family offense petition. We affirm. We reject petitioner's contention that Family Court erred in dismissing the petition. "A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense" (Matter of Marquardt v Marquardt, 97 A.D.3d 1112, 1113 [4th Dept 2012] [internal quotation marks omitted]; see Family Ct Act
§ 832; Matter of Chadwick F. v Hilda G., 77 A.D.3d 1093, 1093-1094 [3d Dept 2010], lv denied 16 N.Y.3d 703 [2011]). "The determination of whether a family offense was committed is a factual issue to be resolved by the [court], and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record" (Matter of Richardson v Richardson, 80 A.D.3d 32, 43-44 [2d Dept 2010]; see Matter of Scroger v Scroger, 68 A.D.3d 1777, 1778 [4th Dept 2009], lv denied 14 N.Y.3d 705 [2010]). As relevant here, a person commits disorderly conduct "when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," he or she "engages in fighting or in tumultuous or threatening behavior"; "makes unreasonable noise"; or "uses abusive or obscene language, or makes an obscene gesture" in a public place (Penal Law § 240.20; see generally Matter of Tucker v Miller, 138 A.D.3d 1383, 1384 [4th Dept 2016], lv denied 28 N.Y.3d 904 [2016]; Matter of Shiffman v Handler, 115 A.D.3d 753, 753 [2d Dept 2014]). According due deference to the court's credibility determinations (see Tucker, 138 A.D.3d at 1384; Matter of Danielle S. v Larry R.S., 41 A.D.3d 1188, 1189 [4th Dept 2007]), we conclude that petitioner failed to establish by a preponderance of the evidence that respondent committed acts constituting disorderly conduct (see generally Donna E. v Michael F., 185 A.D.3d 1179, 1183 [3d Dept 2020]; Matter of Voorhees v Talerico, 128 A.D.3d 1466, 1467 [4th Dept 2015], lv denied 25 N.Y.3d 915 [2015]).
Petitioner's contention that the court erred in conducting a Lincoln hearing is not preserved for our review (see Matter of Mya N. [Reginald N.], 185 A.D.3d 1522, 1526 [4th Dept 2020], lv denied 35 N.Y.3d 917 [2020]; Matter of Brian S. [Tanya S.], 141 A.D.3d 1145, 1146 [4th Dept 2016]; see also Matter of Francisco A. v Amarilis V., 198 A.D.3d 405, 406 [1st Dept 2021]) and, in any event, any alleged error in having the child testify in camera was harmless (see generally Matter of Cyle F. [Alexander F.], 155 A.D.3d 1626, 1626-1627 [4th Dept 2017], lv denied 30 N.Y.3d 911 [2018]; Matter of Gracie C. v Nelson C., 118 A.D.3d 417, 417 [1st Dept 2014]; Matter of Kashif II. v Lataya KK., 99 A.D.3d 1075, 1076-1077 [3d Dept 2012]). Petitioner's contention that the court improperly viewed a video during the hearing is not supported by the record.