Opinion
2018–10222 Docket No. O–15604–16
07-03-2019
In the Matter of Kimberly Cripps MORLEY, Respondent, v. Matthew MORLEY, Appellant.
The Law Offices of Joseph H. Nivin, P.C., Forest Hills, NY, for appellant. Helene Bernstein, Brooklyn, NY, for respondent.
The Law Offices of Joseph H. Nivin, P.C., Forest Hills, NY, for appellant.
Helene Bernstein, Brooklyn, NY, for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, the husband appeals from an order of protection of the Family Court, Queens County (Emily Ruben, J.), dated June 27, 2018. The order of protection, upon a fact-finding order of the same court dated March 14, 2018, made after a fact-finding hearing, finding that the husband committed the family offenses of aggravated harassment in the second degree, harassment in the second degree, stalking in the fourth degree, and reckless endangerment in the second degree, inter alia, directed him to stay away from the wife, except for incidental contact during the exchange of the parties' children, until and including December 27, 2018.
ORDERED that the order of protection is affirmed, without costs or disbursements. Although the order of protection expired by its own terms on December 27, 2018, the appeal has not been rendered academic in light of the enduring consequences which may flow from a finding that the husband committed a family offense (see Matter of Korszun v. Kwas, 169 A.D.3d 906, 907, 92 N.Y.S.3d 666 ).
A family offense must be established by a fair preponderance of the evidence (see Family Ct. Act § 832 ; Matter of Scanziani v. Hairston, 100 A.D.3d 1007, 955 N.Y.S.2d 162 ; Matter of Pearlman v. Pearlman, 78 A.D.3d 711, 712, 911 N.Y.S.2d 87 ). 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 Konstatine v. Konstatine, 107 A.D.3d 994, 968 N.Y.S.2d 166 ; Matter of Winfield v. Gammons, 105 A.D.3d 753, 963 N.Y.S.2d 272 ; Matter of Clarke–Golding v. Golding, 101 A.D.3d 1117, 956 N.Y.S.2d 553 ).
We agree with the Family Court that the evidence adduced at the hearing established, by a fair preponderance of the evidence, that the husband committed acts which constituted the family offenses of aggravated harassment in the second degree (see Penal Law § 240.30[2] ); harassment in the second degree (see Penal Law § 240.26[3] ; Matter of Pochat v. Pochat, 125 A.D.3d 660, 661, 3 N.Y.S.3d 112 ; Matter of Jackson v. Idlett, 103 A.D.3d 723, 959 N.Y.S.2d 706 ; Matter of Gray v. Gray, 55 A.D.3d 909, 910, 867 N.Y.S.2d 110 ); stalking in the fourth degree (see Penal Law § 120.45[3] ; Matter of Lliguicota v. Calva, 168 A.D.3d 1058, 93 N.Y.S.3d 111 ); and reckless endangerment in the second degree (see Penal Law § 120.20 ; Family Ct. Act § 812[1] ; Matter of Ramdhanie v. Ramdhanie, 129 A.D.3d 737, 737–738, 9 N.Y.S.3d 583 ). Thus, the issuance of an order of protection against the husband was warranted.
The husband's remaining contention is without merit.
CHAMBERS, J.P., AUSTIN, DUFFY and CHRISTOPHER, JJ., concur.