Opinion
08-19-2015
In the Matter of Kerryann THOMPSON, respondent, v. Kevin FAWCETT, appellant.
Michael D. Carlin, Brooklyn, N.Y., for appellant. Deana Balahtsis, New York, N.Y., for respondent.
Michael D. Carlin, Brooklyn, N.Y., for appellant.
Deana Balahtsis, New York, N.Y., for respondent.
Opinion Appeal from an order of protection of the Family Court, Kings County (Steven Z. Mostofsky, J.), dated May 22, 2013. The order of protection directed the appellant, inter alia, to stay away from the petitioner until and including May 22, 2015.ORDERED that the order is affirmed, without costs or disbursements.
Although the order of protection expired by its own terms on May 22, 2015, the appeal has not been rendered academic in light of the enduring consequences which may potentially flow from a finding that the appellant committed a family offense (see Matter of Pochat v. Pochat, 125 A.D.3d 660, 3 N.Y.S.3d 112 ; Matter of Samida v. Samida, 116 A.D.3d 779, 982 N.Y.S.2d 899 ; Matter of Hunt v. Hunt, 51 A.D.3d 924, 858 N.Y.S.2d 724 ; Matter of Wallace v. Wallace, 45 A.D.3d 599, 599, 844 N.Y.S.2d 711 ).
“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 Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Ct. Act § 832 ; see Matter of Monos v. Monos, 123 A.D.3d 931, 999 N.Y.S.2d 131 ; Matter of Blackett
v. Blackett, 123 A.D.3d 923, 999 N.Y.S.2d 148 ). Whether a family offense was committed is a factual issue resolved by the hearing court (see Family Ct. Act §§ 812, 832 ; Matter of Blackett v. Blackett, 123 A.D.3d at 923, 999 N.Y.S.2d 148 ; Matter of Hodiantov v. Aronov, 110 A.D.3d 881, 973 N.Y.S.2d 703 ; Matter of Kaur v. Singh, 73 A.D.3d 1178, 900 N.Y.S.2d 895 ). The hearing court's determination regarding witnesses' credibility is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record (see Matter of Deepti v. Kaushik, 126 A.D.3d 790, 5 N.Y.S.3d 299 ; Matter of Shiffman v. Handler, 115 A.D.3d 753, 981 N.Y.S.2d 790 ; Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 1141, 898 N.Y.S.2d 585 ).
The Family Court's determination that the appellant committed the family offense of harassment in the second degree (see Penal Law § 240.26[3] ) is supported by a fair preponderance of the evidence adduced at the hearing, and will not be disturbed (see Matter of Pochat v. Pochat, 125 A.D.3d at 661–662, 3 N.Y.S.3d 112 ).
LEVENTHAL, J.P., MILLER, HINDS–RADIX and MALTESE, JJ., concur.