Opinion
2013-07-10
In the Matter of Donna HUBBARD, respondent, v. Raymond Ponce DeLEON, appellant.
Steven E. Ginsberg, Brooklyn, N.Y., for appellant. Joan L. Beranbaum, New York, N.Y. (Carol M. North of counsel), for respondent.
Steven E. Ginsberg, Brooklyn, N.Y., for appellant. Joan L. Beranbaum, New York, N.Y. (Carol M. North of counsel), for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Raymond Ponce DeLeon appeals from (1) an order of protection of the Family Court, Kings County (Hepner, J.), dated January 31, 2012, which, inter alia, directed him to stay away from the petitioner for a period of five years, and (2) an order of fact-finding and disposition of the same court dated February 1, 2012, which, after a hearing, found that he had committed certain family offenses and which, upon a finding of aggravating circumstances, directed him to comply with the conditions set forth in the order of protection dated January 31, 2012, and placed him on probation under the supervision of the Probation Department of Kings County for a period of one year.
ORDERED that the appeal from so much of the order of fact-finding and disposition as placed the appellant on probation under the supervision of the Probation Department of Kings County for a period of one year is dismissed as academic, as the period of probation has expired; and it is further,
ORDERED that the order of protection is affirmed, without costs or disbursements; and it is further,
ORDERED that the order of fact-finding and disposition is modified, on the facts, by deleting the provision thereof finding that the appellant committed the family offense of attempted assault in the second degree; as so modified, the order of fact-finding and disposition is affirmed insofar as reviewed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence ( seeFamily Court Act § 832; Matter of Chu Man Woo v. Qiong Yun Xi, 106 A.D.3d 818, 964 N.Y.S.2d 647;Matter of Marte v. Biondo, 104 A.D.3d 947, 960 N.Y.S.2d 914). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the credibility determinations of that court, which has the advantage of seeing and hearing the witnesses, are entitled to considerable deference on appeal” (Matter of Marte v. Biondo, 104 A.D.3d at 947, 960 N.Y.S.2d 914;see Matter of Smith v. Amedee, 101 A.D.3d 1033, 956 N.Y.S.2d 172).
Here, a fair preponderance of the credible evidence did not support the Family Court's determination that the appellant committed the family offense of attempted assault in the second degree ( seeFamily Court Act §§ 812[1], 832; Penal Law §§ 110.00, 120.05[1]; People v. McGee, 20 N.Y.3d 513, 519, 964 N.Y.S.2d 73, 986 N.E.2d 907;cf. People v. Andrews, 78 A.D.3d 1229, 1230–1231, 911 N.Y.S.2d 221;People v. Bruno, 47 A.D.3d 1064, 1066, 849 N.Y.S.2d 701). However, a preponderance of the credible evidence adduced at the fact-finding hearing supports the Family Court's finding that the appellant committed the family offenses of assault in the third degree ( seePenal Law § 120.00[1]; Matter of Stewart v. Lassiter, 103 A.D.3d 734, 959 N.Y.S.2d 717;cf. Matter of Opray v. Fitzharris, 84 A.D.3d 1092, 1093, 924 N.Y.S.2d 421), menacing in the third degree ( seePenal Law § 120.15; Matter of Denzel F., 44 A.D.3d 389, 390, 843 N.Y.S.2d 60), stalking in the fourth degree ( seePenal Law § 120.45[1]; Matter of Ciccone v. Ciccone, 73 A.D.3d 1052, 900 N.Y.S.2d 650), harassment in the second degree ( seePenal Law § 240.26[1]; Matter of Janice M. v. Terrance J., 96 A.D.3d 482, 945 N.Y.S.2d 693;Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63), and disorderly conduct ( seeFamily Court Act § 812[1]; Penal Law § 240.20[1]; Matter of Hagopian v. Hagopian, 66 A.D.3d 1021, 1022, 887 N.Y.S.2d 682;Matter of Miriam M. v. Warren M., 51 A.D.3d 581, 859 N.Y.S.2d 66;Matter of Bhanote v. Bhanote, 22 A.D.3d 490, 803 N.Y.S.2d 651). Further, the Family Court's finding that aggravating circumstances were present was supported by the record ( seeFamily Ct. Act § 827[a][vii]; Matter of Kaur v. Singh, 101 A.D.3d 877, 878, 955 N.Y.S.2d 633;Matter of Bailey–Felton v. Felton, 90 A.D.3d 652, 652, 933 N.Y.S.2d 900; Matter of Holder v. Francis, 67 A.D.3d 679, 888 N.Y.S.2d 567).
Based on the foregoing, there is no basis to disturb the order of protection.