In the Matter of Abbott v. Burnes

9 Citing cases

  1. Garbarino v. Garbarino

    120 A.D.3d 578 (N.Y. App. Div. 2014)   Cited 4 times

    rted by “a fair preponderance of the evidence” (Family Ct. Act § 832; see Matter of Patton v. Torres, 38 A.D.3d 667, 668, 832 N.Y.S.2d 599;Matter of Dabbene v. Dabbene, 297 A.D.2d 812, 747 N.Y.S.2d 808;Matter of Hogan v. Hogan, 271 A.D.2d 533, 705 N.Y.S.2d 678). The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Santiago v. Friedman, 35 A.D.3d 482, 824 N.Y.S.2d 723;Matter of Phillips v. Laland, 4 A.D.3d 529, 530, 771 N.Y.S.2d 718). Here, contrary to the appellant's contention, a fair preponderance of the credible evidence supports the Family Court's determination that she committed the family offense of harassment in the second degree, warranting the issuance of an order of protection against her ( see Family Ct. Act § 832; Penal Law § 240.26 [3]; Matter of Oakes v. Oakes, 115 A.D.3d 956, 982 N.Y.S.2d 532;Matter of Santiago v. Friedman, 35 A.D.3d at 482, 824 N.Y.S.2d 723;Matter of Abbott v. Burnes, 27 A.D.3d 555, 813 N.Y.S.2d 133). RIVERA, J.P., ROMAN, SGROI and LaSALLE, JJ., concur.

  2. Oakes v. Oakes

    115 A.D.3d 956 (N.Y. App. Div. 2014)   Cited 4 times

    in a petition in a family offense proceeding must be supported by “a fair preponderance of the evidence” (Family Ct. Act § 832; see Matter of Patton v. Torres, 38 A.D.3d 667, 668, 832 N.Y.S.2d 599;Matter of Dabbene v. Dabbene, 297 A.D.2d 812, 747 N.Y.S.2d 808;Matter of Hogan v. Hogan, 271 A.D.2d 533, 705 N.Y.S.2d 678). The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Santiago v. Friedman, 35 A.D.3d 482, 824 N.Y.S.2d 723;Matter of Phillips v. Laland, 4 A.D.3d 529, 771 N.Y.S.2d 718). Here, contrary to the appellant's contention, a fair preponderance of the credible evidence supports the Family Court's determination that she committed the family offense of harassment in the second degree, warranting the issuance of a suspended judgment against the appellant ( seeFamily Ct. Act § 832; Penal Law § 240.26[3]; Matter of Santiago v. Friedman, 35 A.D.3d at 482, 824 N.Y.S.2d 723;Matter of Abbott v. Burnes, 27 A.D.3d 555, 813 N.Y.S.2d 133). The record also supports the Family Court's determination that the evidence adduced at the hearing was insufficient to establish that the respondent committed a family offense against the appellant.

  3. Stewart v. Lassiter

    103 A.D.3d 734 (N.Y. App. Div. 2013)   Cited 12 times

    ORDERED that the order of protection is affirmed, without costs or disbursements. Although the Family Court failed to specify the particular family offense under Family Court Act § 812(1) that the appellant committed, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence ( see Matter of Baginski v. Rostkowski, 96 A.D.3d 1051, 946 N.Y.S.2d 886;see also Matter of Drury v. Drury, 90 A.D.3d 754, 754, 934 N.Y.S.2d 337;Matter of Abbott v. Burnes, 27 A.D.3d 555, 813 N.Y.S.2d 133). The evidence adduced at the hearing established, by a preponderance of the evidence, that the appellant engaged in acts which would constitute the offense of attempted assault in the third degree, warranting the issuance of an order of protection ( seeFamily Ct. Act §§ 812[1], 832; Penal Law §§ 110.00, 120.00). The appellant failed to establish that he was denied the effective assistance of counsel ( see Matter of Melissa K. v. Brian K., 72 A.D.3d 1129, 898 N.Y.S.2d 318).

  4. Kaur v. Singh

    73 A.D.3d 1178 (N.Y. App. Div. 2010)   Cited 44 times

    Here, a fair preponderance of the credible evidence supported the Family Court's determination that, on November 27, 2008, the appellant committed acts which constituted the family offenses of harassment in the second degree and menacing, warranting the issuance of an order of protection ( see Family Ct Act § 832; Penal Law § 240.26; § 120.15; Matter of Czop v Czop, 21 AD3d 958, 959; Matter of Jessica C. v Esteban B., 13 AD3d 183; Yvette H. v Michael G., 270 AD2d 123). Contrary to the appellant's contention, it was not incumbent upon the Family Court to specify the particular family offense, i.e., what degree of menacing his acts constituted, where it was clear from the record that his acts constituted menacing in the third degree ( see Matter of Abbott v Burnes, 27 AD3d 555; Matter of Topper v Topper, 271 AD2d 613, 613-614). The appellant's remaining contentions are without merit.

  5. In re Creighton

    71 A.D.3d 1141 (N.Y. App. Div. 2010)   Cited 59 times

    Ordered that 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 hearing court ( see Family Ct Act §§ 812, 832; Matter of Halper v Halper, 61 AD3d 687; Matter of Lallmohamed v Lallmohamed, 23 AD3d 562), and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Gray v Gray, 55 AD3d 909; Matter of Wallace v Wallace, 45 AD3d 599). Contrary to the appellant's contention, it is not incumbent upon the Family Court to specify in the protective order the particular family offense he committed where it is clear from the allegations in the petition and the evidence adduced at the hearing ( see Matter of Abbott v Burnes, 27 AD3d 555; Matter of Topper v Topper, 271 AD2d 613, 613-614). Here, the petitioner stated to the police and in her family offense petition that, inter alia, on January 12, 2009, the appellant committed acts of physical and verbal abuse which constituted the family offense of harassment, and a fair preponderance of the credible evidence adduced at the fact-finding hearing supports a finding that the appellant committed that offense, warranting the issuance of an order of protection ( see Penal Law § 240.26; Matter of Robbins v Robbins, 48 AD3d 822, 822-823; Matter of Topper v Topper, 271 AD2d at 613-614).

  6. Robbins v. Robbins

    48 A.D.3d 822 (N.Y. App. Div. 2008)   Cited 19 times

    On appeal, the husband argues that the Family Court improperly credited the wife's testimony and that the wife failed to prove, by a fair preponderance of the evidence, that he committed the two family offenses of harassment in the second degree. The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Santiago v Friedman, 35 AD3d 482; Matter of Phillips v Laland, 4 AD3d 529). Contrary to the husband's contention, a fair preponderance of the credible evidence supported the Family Court's determination that he committed two separate family offenses of harassment in the second degree, warranting the issuance of an order of protection ( see Family Ct Act § 832; Penal Law § 240.26; Matter of Santiago v Friedman, 35 AD3d 482; Matterof Abbott v Burnes, 27 AD3d 555).

  7. Wan-Su Li v. Cloud Feng

    45 A.D.3d 775 (N.Y. App. Div. 2007)   Cited 4 times

    Contrary to the husband's contention, the Family Court's finding that he committed family offenses is not against the weight of the evidence. The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal ( see Matter of Jeannie B. v Roger D., 33 AD3d 994, 994-995; Matter of Betz v Betz, 241 AD2d 519). That determination will not be disturbed unless it is clearly unsupported by the record ( see Matter of Abbott v Burnes, 27 AD3d 555). Here, the Family Court's decision to credit the wife's testimony, which established that the husband harassed and assaulted her on numerous occasions, is supported by the record.

  8. In re Danielle S

    41 A.D.3d 1188 (N.Y. App. Div. 2007)   Cited 19 times

    Family Court's assessment of the credibility of the witnesses is entitled to great weight, and the record supports the court's finding that petitioner was a more credible witness than respondent ( see Matter of Charles v Charles, 21 AD3d 487). The record also supports the court's determination that petitioner met her burden of establishing by a preponderance of the evidence that respondent committed acts constituting the crime of assault in the third degree, thus warranting the issuance of orders of protection in favor of the parties' children and petitioner ( see Family Ct Act § 812; Matter of Abbott v Burnes, 27 AD3d 555). Contrary to the contention of respondent, evidence that he committed acts of violence against petitioner in the presence of each child warrants the issuance of the order of protection in favor of the children ( see Matter of Charlene J.R. v Walter A.M., 307 AD2d 1038, 1039; see also Matter of Machukas v Wagner, 246 AD2d 840, 842-843, lv denied 91 NY2d 813)

  9. Desouza-Brown v. Brown

    38 A.D.3d 888 (N.Y. App. Div. 2007)   Cited 8 times

    Although the order of protection expired by its own terms on January 24, 2007, the appeal is not academic in light of the enduring consequences that may potentially flow from an adjudication that the father committed a family offense ( see Matter of Rochester v Rochester, 26 AD3d 387, 388; Matter of Kravitz v Kravitz, 18 AD3d 874, 875; Matter of Zieran v Marvin, 2 AD3d 870, 872; Matter of Cutrone v Cutrone, 225 AD2d 767, 768). The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record ( see Matter of Abbott v Burnes, 27 AD3d 555; Matter of Phillips v Laland, 4 AD3d 529, 530; Matter of Topper v Topper, 271 AD2d 613). We find no basis on this record to disturb the Family Court's determination, which is supported by a fair preponderance of the evidence ( see Family Ct Act §§ 812, 832; Penal Law § 120.00; Matter of St. Denis v St. Denis, 1 AD3d 370).