Opinion
2018–01870 Docket No. O–30559–15
01-23-2019
In the Matter of Fatima VERA MELO, Respondent, v. Bismark ZUNIGA, Appellant.
Mark Brandys, New York, NY, for appellant. Brooklyn Legal Services, Brooklyn, N.Y. (Allison A. Dunlop of counsel), for respondent.
Mark Brandys, New York, NY, for appellant.
Brooklyn Legal Services, Brooklyn, N.Y. (Allison A. Dunlop of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDERORDERED that the order of protection is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the appellant, her then husband. After a fact-finding hearing, the Family Court found that the appellant committed the family offenses of forcible touching, harassment in the first degree, and harassment in the second degree. After a dispositional hearing, the court issued an order of protection directing the appellant, inter alia, to stay away from the parties' residence until June 6, 2019.
In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, that the charged conduct was committed as alleged in the petition (see Family Ct. Act § 832 ; Matter of Espinal v. Burton, 167 A.D.3d 605, 86 N.Y.S.3d 919 [2d Dept. 2018] ; Matter of Vella v. Dillman, 160 A.D.3d 883, 883–884, 74 N.Y.S.3d 325 ; Matter of Bah v. Bah, 112 A.D.3d 921, 921–922, 978 N.Y.S.2d 301 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal" and will not be disturbed if supported by the record ( Matter of Nusbaum v. Nusbaum, 59 A.D.3d 725, 725, 874 N.Y.S.2d 378 [citations and internal quotation marks omitted]; see Matter of Richardson v. Richardson, 80 A.D.3d 32, 43–44, 910 N.Y.S.2d 149 ).
Here, the Family Court was presented with conflicting testimony as to whether the appellant committed the family offenses of forcible touching, harassment in the first degree, and harassment in the second degree. The court's determination that the appellant had committed those family offenses was based upon its assessment of the credibility of the parties and is supported by a preponderance of the evidence (see Family Ct. Act §§ 812, 832 ; Penal Law §§ 130.52, 240.25, 240.26[1], [3] ; Matter of Vella v. Dillman, 160 A.D.3d at 884, 74 N.Y.S.3d 325 ).Contrary to the appellant's contention, the Family Court providently exercised its discretion in issuing an order of protection directing him, inter alia, to stay away from the parties' residence until June 6, 2019, because the order of protection was reasonably necessary to provide the petitioner with protection and to eradicate the root of the family disturbance (see Family Ct. Act § 841[d] ; Matter of Silva v. Silva, 125 A.D.3d 869, 870, 1 N.Y.S.3d 848 ; Matter of Mistretta v. Mistretta, 85 A.D.3d 1034, 1035, 926 N.Y.S.2d 582 ; Matter of Charles v. Charles, 21 A.D.3d 487, 488, 799 N.Y.S.2d 822 ).
The appellant's remaining contentions do not warrant reversal.
RIVERA, J.P., COHEN, HINDS–RADIX and MALTESE, JJ., concur.