Opinion
2022–00160 Docket No. O–1777–21
11-23-2022
In the Matter of Marissa M. JONES, appellant, v. Kenneth J. JONES, respondent.
Jan Murphy, Huntington, NY, for appellant.
Jan Murphy, Huntington, NY, for appellant.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Nassau County (Philippe Solages, Jr., J.), dated December 6, 2021. The order, insofar as appealed from, after a hearing, denied those branches of the petition which alleged that the respondent committed the family offenses of harassment in the second degree and reckless endangerment in the second degree and dismissed those portions of the proceeding.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8, alleging, inter alia, that the respondent, the petitioner's father, had committed the family offenses of harassment in the second degree and reckless endangerment in the second degree against her. After a hearing, the Family Court, among other things, determined that the petitioner failed to establish by a preponderance of the evidence that the respondent committed the family offenses of harassment in the second degree and reckless endangerment in the second degree, denied those branches of the petition, and dismissed those portions of the proceeding. The petitioner appeals. In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct Act § 832 ; Matter of Joseph v. Joseph, 180 A.D.3d 908, 908, 116 N.Y.S.3d 612 ; Matter of Estime v. Civil, 168 A.D.3d 936, 937, 90 N.Y.S.3d 557 ). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of Joseph v. Joseph, 180 A.D.3d at 908, 116 N.Y.S.3d 612 ; Matter of Estime v. Civil, 168 A.D.3d at 937, 90 N.Y.S.3d 557 ). "Where, as here, ‘the court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination [should] not be disturbed unless clearly unsupported by the record’ " ( Matter of Straight v. Grant, 184 A.D.3d 647, 648, 123 N.Y.S.3d 532, quoting Matter of Mohammed v. Mohammed, 174 A.D.3d 615, 615–616, 101 N.Y.S.3d 884 ; see Matter of Joseph v. Joseph, 180 A.D.3d at 908, 116 N.Y.S.3d 612 ).
Here, the Family Court's determination that the petitioner failed to establish, by a preponderance of the evidence, that the respondent committed the family offenses of harassment in the second degree and reckless endangerment in the second degree hinged on issues of credibility and is supported by the record (see Matter of Joseph v. Joseph, 180 A.D.3d at 909, 116 N.Y.S.3d 612 ; Matter of Diaz v. Rodriguez, 164 A.D.3d 1340, 1340, 81 N.Y.S.3d 756 ; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d 752, 752, 7 N.Y.S.3d 222 ).
The petitioner's contention that reversal is required because of the admission into evidence of a hearsay statement by the respondent is without merit. The Family Court did not explicitly rely on that statement in reaching its determination, which was amply supported by the credible testimony adduced at the hearing (see Matter of Higgins v. Higgins, 128 A.D.3d 1396, 1397, 7 N.Y.S.3d 796 ; Hughes v. Sivertsen, 275 A.D.2d 414, 414, 712 N.Y.S.2d 613 ; Matter of Jelenic v. Jelenic, 262 A.D.2d 676, 678, 690 N.Y.S.2d 782 ).
Accordingly, we find no basis to disturb the Family Court's determination denying those branches of the petition which alleged that the respondent committed the family offenses of harassment in the second degree and reckless endangerment in the second degree and dismissing those portions of the proceeding.
BRATHWAITE NELSON, J.P., GENOVESI, DOWLING and VOUTSINAS, JJ., concur.