Opinion
285 CAF 22-00474
03-24-2023
In the Matter of Dorcelia M. HARVEY, Petitioner-Respondent, v. Timothy P. HARVEY, Respondent-Appellant.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-APPELLANT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
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, respondent appeals from an order of protection entered upon a finding that he committed the family offense of harassment in the second degree against petitioner, respondent's mother (see Penal Law § 240.26 [1] ; see also Family Ct Act § 812 [1] ). We affirm.
"A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense" ( Matter of Washington v. Davis , 207 A.D.3d 1078, 1079, 169 N.Y.S.3d 567 [4th Dept. 2022], lv denied 39 N.Y.3d 902, 2022 WL 11456463 [2022] [internal quotation marks omitted]; see Matter of Marquardt v. Marquardt , 97 A.D.3d 1112, 1113, 948 N.Y.S.2d 484 [4th Dept. 2012] ). "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" ( Washington , 207 A.D.3d at 1079, 169 N.Y.S.3d 567 [internal quotation marks omitted]; see Matter of Scroger v. Scroger , 68 A.D.3d 1777, 1778, 890 N.Y.S.2d 851 [4th Dept. 2009], lv denied 14 N.Y.3d 705, 2010 WL 1190263 [2010] ). As relevant here, a person commits harassment in the second degree when, "with intent to harass, annoy or alarm another person ... [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" ( Penal Law § 240.26 [1] ). Petitioner testified at the fact-finding hearing that respondent struck her in the back of the head as she drove and that he threatened to harm her. We therefore conclude that, contrary to respondent's contention, petitioner established by a preponderance of the evidence that respondent committed acts constituting harassment in the second degree (see Matter of Cousineau v. Ranieri , 185 A.D.3d 1421, 1422, 128 N.Y.S.3d 120 [4th Dept. 2020], lv denied 35 N.Y.3d 917, 2020 WL 6788983 [2020] ).