Opinion
11-18-2015
In the Matter of Joanna GARCIA, respondent, v. Anthony MARINI, appellant.
Anthony Marini, Yonkers, N.Y., appellant pro se.
Anthony Marini, Yonkers, N.Y., appellant pro se.
Opinion
Appeal from an order of protection of the Family Court, Westchester County (David Klein, J.), dated August 25, 2014. The order of protection, after a hearing, upon a finding, in effect, that the appellant committed the family offenses of disorderly conduct and harassment in the second degree, directed the appellant, inter alia, to stay away from the petitioner and the parties' child for a period up to and including August 25, 2016.
ORDERED that the order of protection is affirmed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence (see Family Ct. Act § 832; Matter of Ramdhanie v. Ramdhanie, 129 A.D.3d 737, 9 N.Y.S.3d 583; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d 752, 7 N.Y.S.3d 222; Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 986 N.Y.S.2d 350). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Bibolova v. Radu, 82 A.D.3d 1222, 1223, 919 N.Y.S.2d 388; see Matter of Martinez v. Aviles, 112 A.D.3d 719, 976 N.Y.S.2d 393). “Only competent, material and relevant evidence may be admitted in a fact-finding hearing” (Family Ct. Act § 834; see Matter of Walsh v. Desroches, 118 A.D.3d 813, 814, 987 N.Y.S.2d 231; Matter of Nunziata v. Nunziata, 93 A.D.3d 800, 801, 941 N.Y.S.2d 190). Here, contrary to the Family Court's determination, the petitioner did not establish the family offense of disorderly conduct by competent evidence (see Family Ct. Act § 834; Penal Law § 240.20; Matter of Martinez v. Aviles, 112 A.D.3d at 719, 976 N.Y.S.2d 393; Matter of Cassie v. Cassie, 109 A.D.3d 337, 342, 969 N.Y.S.2d 537). However, the petitioner did sustain her burden with respect to the family offense of harassment in the second degree, thus warranting the issuance of the subject order of protection (see Family Ct. Act §§ 812, 832; Penal Law § 240.26[3]; Matter of Lynn TT. v. Joseph O., 129 A.D.3d 1129, 1130–1131, 10 N.Y.S.3d 702; Dayan v. Dayan, 126 A.D.3d 749, 750, 2 N.Y.S.3d 811; Matter of Bazante v. Bazante, 107 A.D.3d 707, 966 N.Y.S.2d 483).
The appellant's remaining contentions are without merit.
RIVERA, J.P., DILLON, CHAMBERS and LaSALLE, JJ., concur.