Opinion
2012-12-12
In the Matter of Sarbjeet KAUR, respondent, v. Gurmail SINGH, appellant. (Proceeding No. 1) In the Matter of Gurmail Singh, appellant, v. Sarbjeet Kaur, respondent. (Proceeding No. 2).
Diana H. Kelly, Jamaica, N.Y., for appellant. Helene Bernstein, Brooklyn, N.Y., for respondent.
Diana H. Kelly, Jamaica, N.Y., for appellant. Helene Bernstein, Brooklyn, N.Y., for respondent.
Geanine Towers, Brooklyn, N.Y., attorney for the children.
WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.
In a visitation proceeding pursuant to Family Court Act article 6 and a related family offense proceeding pursuant to Family Court Act article 8, the father appeals from (1) an order of protection of the Family Court, Queens County (Fitzmaurice, J.), dated November 30, 2011, which, after a fact-finding hearing, directed him, inter alia, to stay away from the parties' minor child for a period of five years, and (2) an order of the same court dated December 6, 2011, which, after a fact-finding hearing, dismissed his petition seeking visitation with the minor child.
ORDERED that the order of protection and the order are affirmed, without costs or disbursements.
In a family offense proceeding, the allegations asserted in a petition seeking the issuance of an order of protection must be supported by “a fair preponderance of the evidence” (Family Ct. Act § 832; see Matter of Hasbrouck v. Hasbrouck, 59 A.D.3d 621, 875 N.Y.S.2d 86;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 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 and will not be disturbed if supported by the record ( see Matter of Luke v. Luke, 72 A.D.3d 689, 897 N.Y.S.2d 655;Matter of Holder v. Francis, 67 A.D.3d 679, 888 N.Y.S.2d 567;Matter of Sblendorio v. D'Agostino, 60 A.D.3d 773, 877 N.Y.S.2d 92;Matter of Fernandez v. Pacheco, 59 A.D.3d 542, 543, 872 N.Y.S.2d 291).
At a fact-finding hearing before the Family Court, it was established by a fair preponderance of the evidence that the father committed the family offenses of reckless endangerment in the second degree ( seeFamily Ct. Act § 812[1]; Penal Law § 120.20), menacing in the second degree ( seePenal Law § 120.14[2]; Matter of Gray v. Gray, 55 A.D.3d 909, 910, 867 N.Y.S.2d 110), and assault in the second degree ( seePenal Law § 120.05). Further, the Family Court's finding that aggravating circumstances were present was supported by the record ( see Matter of Hassett v. Hassett, 4 A.D.3d 527, 771 N.Y.S.2d 720;Matter of Reilly v. Reilly, 254 A.D.2d 361, 362, 688 N.Y.S.2d 153;Matter of Mawhirt v. Mawhirt, 241 A.D.2d 524, 663 N.Y.S.2d 987). Accordingly, the Family Court properly issued an order of protection directing the father, inter alia, to stay away from the minor child for a period of five years ( seeFamily Ct. Act § 842).
Contrary to the father's contention, under the circumstances of this case, the Family Court's decision not to hold a dispositional hearing prior to issuing the order of protection does not require reversal ( see Sblendorio v. D'Agostino, 60 A.D.3d at 774, 877 N.Y.S.2d 92;Matter of Hassett v. Hassett, 4 A.D.3d 527, 771 N.Y.S.2d 720;Matter of Dabbene v. Dabbene, 297 A.D.2d at 813, 747 N.Y.S.2d 808;Matter of Annie C. v. Marcellus W., 278 A.D.2d 177, 719 N.Y.S.2d 225;Matter of Quintana v. Quintana, 237 A.D.2d 130, 654 N.Y.S.2d 27). In addition, upon the exercise of our factual review power, the Family Court's disposition was not contrary to the weight of the evidence ( see Matter of Sperling v. Sperling, 96 A.D.3d 1067, 1068, 946 N.Y.S.2d 877;Matter of Sblendorio v. D'Agostino, 60 A.D.3d at 774, 877 N.Y.S.2d 92).
Similarly, the Family Court's determination that the denial of visitation with the father was in the child's best interests has a sound and substantial basis in the record and, therefore, we find no basis to disturb it ( see Matter of Samia Z., 297 A.D.2d 385, 746 N.Y.S.2d 598;Matter of Licitra v. Licitra, 255 A.D.2d 384, 679 N.Y.S.2d 700;Matter of MacEwen v. MacEwen, 214 A.D.2d 572, 625 N.Y.S.2d 75).
The father's remaining contentions are either unpreserved for appellate review or without merit.