Opinion
12-30-2015
In the Matter of Svetlana NIYAZOVA, respondent, v. Daniel SHIMUNOV, appellant.
Michael A. Liddie, Jamaica, N.Y., for appellant. Janis A. Parazzelli, Floral Park, N.Y., for respondent. Lisa Siano, Merrick, N.Y., attorney for the children.
Michael A. Liddie, Jamaica, N.Y., for appellant.
Janis A. Parazzelli, Floral Park, N.Y., for respondent.
Lisa Siano, Merrick, N.Y., attorney for the children.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
Appeal from an order of protection of the Family Court, Queens County (Anne–Marie Jolly, J.), dated March 7, 2014. The order of protection, after a hearing, upon a finding that the appellant committed the family offense of harassment in the second degree, directed the appellant, inter alia, to refrain from committing any criminal offenses against the petitioner.
ORDERED that the order of protection is affirmed, without costs or disbursements.
Although the order of protection expired by its own terms on March 7, 2015, the appeal has not been rendered academic in light of the enduring consequences which may potentially flow from a finding that the appellant committed the subject family offense (see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 671, 3 N.Y.S.3d 288, 26 N.E.3d 1143 ; Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793 ).
In a family offense proceeding, the allegations must be "supported by a fair preponderance of the evidence" (Family Ct. Act § 832 ; see Matter of Silva v. Silva, 125 A.D.3d 869, 869, 1 N.Y.S.3d 848 ; Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 632, 975 N.Y.S.2d 894 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal" (Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 716, 986 N.Y.S.2d 350 [internal quotation marks omitted]; see Matter of Kondor v. Kondor, 109 A.D.3d 660, 660, 971 N.Y.S.2d 21 ), and should not be disturbed unless clearly unsupported by the record (see Matter of Miloslau v. Miloslau, 112 A.D.3d at 632, 975 N.Y.S.2d 894 ).
Here, the evidence adduced at the hearing established, by a fair preponderance of the evidence, that the appellant committed acts against the petitioner which constituted the family offense of harassment in the second degree(see Penal Law § 240.26[1] ; Family Ct. Act § 812 [1] ; Matter of Smith v. Amedee, 101 A.D.3d 1033, 1033, 956 N.Y.S.2d 172 ), warranting the issuance of an order of protection against him (see Matter of Parameswar v. Parameswar, 109 A.D.3d at 474, 970 N.Y.S.2d 793 ; Matter of Hagopian v. Hagopian, 66 A.D.3d 1021, 1022, 887 N.Y.S.2d 682 ). The Family Court found that the petitioner's testimony that the appellant hit her was credible, and the appellant did not refute that portion of the petitioner's testimony. In addition, the petitioner's testimony as to this issue was supported by photographic evidence. Thus, the court's credibility determination is supported by the record and should not be disturbed (see Matter of Cabeza v. Cabeza, 107 A.D.3d 793, 794, 966 N.Y.S.2d 679 ; Matter of Winfield v. Gammons, 105 A.D.3d 753, 754, 963 N.Y.S.2d 272 ).
The provision of the order which, inter alia, directed the appellant to refrain from committing any criminal offenses against the petitioner, was appropriate as it provided meaningful protection for the petitioner from the appellant consistent with the facts of this case (see Matter of Garbarino v. Garbarino, 120 A.D.3d 578, 579, 990 N.Y.S.2d 853 ; Matter of Miloslau v. Miloslau, 112 A.D.3d at 632, 975 N.Y.S.2d 894 ).
The appellant's remaining contentions are without merit.