Opinion
2018–02259 Docket No. O–6833–16
04-17-2019
In the Matter of Wesley MULLINGS, etc., Appellant, v. Richard ABRAHAMS, Respondent.
David M. Rosoff, White Plains, NY, for appellant. Thomas F. Fanelli, Jr., White Plains, NY, attorney for the child.
David M. Rosoff, White Plains, NY, for appellant.
Thomas F. Fanelli, Jr., White Plains, NY, attorney for the child.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.
DECISION & ORDERIn a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Westchester County (Gail B. Rice, J.), dated February 6, 2018. The order, after a fact-finding hearing, in effect, denied the family offense petition and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced this family offense proceeding on behalf of his son (hereinafter the child) against the child's stepfather. The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" ( Family Ct Act § 832 ; see Matter of Saquipay v. Puzhi, 160 A.D.3d 879, 879, 74 N.Y.S.3d 329 ; Matter of Shank v. Shank, 155 A.D.3d 875, 876, 63 N.Y.S.3d 719 ). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of Richardson v. Richardson, 80 A.D.3d 32, 43, 910 N.Y.S.2d 149 ; Matter of Hall v. Hall, 45 A.D.3d 842, 845 N.Y.S.2d 745 ; Matter of Pastore v. Russo, 38 A.D.3d 556, 832 N.Y.S.2d 577 ). Here, the Family Court's finding that the petitioner failed to adduce sufficient evidence to establish that a family offense was committed by the respondent is supported by the record (see Matter of Richardson v. Richardson, 80 A.D.3d 32, 44, 910 N.Y.S.2d 149 ; Matter of Ortiz v. Ortiz, 2 A.D.3d 1236, 768 N.Y.S.2d 858 ).
The Family Court providently exercised its discretion in declining to compel the child to testify (see Matter of Amoya S. [Henry C.-Syvonne C.], 100 A.D.3d 641, 953 N.Y.S.2d 649 ; Matter of Imman H., 49 A.D.3d 879, 881, 854 N.Y.S.2d 517 ).
The petitioner's remaining contentions are, for the most part, unpreserved for appellate review. In any event, the contentions are without merit.
RIVERA, J.P., ROMAN, HINDS–RADIX and DUFFY, JJ., concur.