Opinion
2012-05-23
In the Matter of Jesica DEL CANTO, respondent, v. Steven BEHRENS, appellant.
Stephen N. Preziosi, New York, N.Y., for appellant.
, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, Steven Behrens appeals from an order of protection of the Family Court, Queens County (Lebwohl, J.), dated August 23, 2011, which, after a hearing, and upon a finding that he had committed a family offense within the meaning of Family Court Act § 812, directed him, inter alia, to stay away from the petitioner for a period of three years until and including August 23, 2014.
ORDERED that the order of protection is modified, on the law, by deleting the provision thereof directing that the order of protection shall remain in effect until and including August 23, 2014, and substituting therefor a provision directing that the order of protection shall remain in effect until and including August 23, 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 Family Court, and any credibility determination made in connection therewith is entitled to deference on appeal ( see Matter of Brito v. Vasquez, 93 A.D.3d 842, 941 N.Y.S.2d 634;Matter of Greener v. Greener, 77 A.D.3d 664, 908 N.Y.S.2d 450;Matter of Holder v. Francis, 67 A.D.3d 679, 888 N.Y.S.2d 567;Matter of Fiore v. Fiore, 34 A.D.3d 803, 823 N.Y.S.2d 902;Matter of Willis v. Watson, 27 A.D.3d 760, 815 N.Y.S.2d 610). Here, the evidence adduced at the hearing established, by a fair preponderance of the evidence, that the appellant committed the family offenses of harassment in the second degree and aggravated harassment in the second degree, warranting the issuance of an order of protection ( seeFamily Ct. Act §§ 812, 832; Penal Law §§ 240.26[3], 240.30[1]; Matter of Drury v. Drury, 90 A.D.3d 754, 755, 934 N.Y.S.2d 337;Matter of Testman v. Roman, 78 A.D.3d 719, 720, 909 N.Y.S.2d 913;Matter of Larson v. Gilliam, 49 A.D.3d 650, 852 N.Y.S.2d 808;Matter of Fiore v. Fiore, 34 A.D.3d at 803, 823 N.Y.S.2d 902).
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 Drury v. Drury, 90 A.D.3d at 755, 934 N.Y.S.2d 337). Accordingly, 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), and we modify the order to direct that it remain in effect until and including August 23, 2013.