Opinion
2014-03886, 2014-03888, 2014-06628, (Docket No. O-02006-14)
06-03-2015
In the Matter of Carol POLIZZI, respondent, v. Grant McCREA, appellant.
Anna Stern, Brooklyn, N.Y., for appellant. Peter Clemente, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Melanie T. West and Janet Neustaetter of counsel), attorney for the child.
Anna Stern, Brooklyn, N.Y., for appellant.
Peter Clemente, New York, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Melanie T. West and Janet Neustaetter of counsel), attorney for the child.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
Opinion Appeals from (1) an order of protection of the Family Court, Kings County (Dean T. Kusakabe, J.), dated April 11, 2014, (2) an order of probation of that court, also dated April 11, 2014, and (3) a modified order of probation of that court dated May 16, 2014. The order of protection, upon a finding, after a hearing, that the appellant committed the family offense of harassment in the second degree, directed the appellant, inter alia, to stay away from the petitioner and her home for a stated period of time. The order of probation and the modified order of probation directed the appellant, inter alia, to enroll in and be fully compliant with an alcohol abuse treatment program and to report to the Department of Probation for a stated period of time.
ORDERED that the appeal from the order of probation is dismissed, without costs or disbursements, as that order was superseded by the modified order of probation; and it is further,
ORDERED that the order of protection and the modified order of probation are affirmed, without costs or disbursements.
“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” (Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Ct. Act § 832 ; see Matter of Tumba v. Gharib, 127 A.D.3d 770, 4 N.Y.S.3d 545 ; Matter of Musheyev v. Musheyev, 126 A.D.3d 800, 2 N.Y.S.3d 807 ). “ ‘The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court’ ” (Matter of Kaur v. Singh, 73 A.D.3d 1178, 1178, 900 N.Y.S.2d 895, quoting Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 1141, 898 N.Y.S.2d 585 ; see Matter of Tumba v. Gharib, 127 A.D.3d 770, 4 N.Y.S.3d 545 ; Matter of Cole v. Muirhead, 125 A.D.3d 964, 5 N.Y.S.3d 178 ). “The Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Charalambous v. Zohios, 125 A.D.3d 963, 1 N.Y.S.3d 862 ; see Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d 752, 7 N.Y.S.3d 222 ; Matter of Vachaviolos v. Rosa, 123 A.D.3d 731, 997 N.Y.S.2d 721 ).
Here, a fair preponderance of the credible evidence supports the Family Court's finding that the appellant committed the family offense of harassment in the second degree (Penal Law § 240.26 [1] ). “[A] single incident is legally sufficient to support a finding of harassment in the second degree” (Matter of Tamara A. v. Anthony Wayne S., 110 A.D.3d 560, 561, 974 N.Y.S.2d 48 ). The intent element of the offense “is properly inferred from [the appellant's] conduct and the surrounding circumstances” (Matter of Messana v. Messana, 115 A.D.3d 860, 861, 982 N.Y.S.2d 346 ).
Contrary the appellant's contention, the terms of the orders currently under review are not “excessive and unreasonable.” The Family Court's orders contain provisions that are “reasonably necessary to provide meaningful protection [to the petitioner] and to eradicate the root of the [domestic] disturbance” (Matter of Monos v. Monos, 123 A.D.3d 931, 932, 999 N.Y.S.2d 131, quoting Matter of Mistretta v. Mistretta, 85 A.D.3d 1034, 1035, 926 N.Y.S.2d 582 ).
Accordingly, we affirm the order of protection and the modified order of probation.