Opinion
2012-07-18
In the Matter of Pilar SALAZAR, respondent, v. Candido MELENDEZ, appellant.
Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of counsel), for appellant. Warren S. Hecht, Forest Hills, N.Y., for respondent.
Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of counsel), for appellant. Warren S. Hecht, Forest Hills, N.Y., for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from an order of fact-finding and disposition of the Family Court, Orange County (Bivona, J.), dated July 19, 2011, which, after a hearing, inter alia, found that he committed two family offenses of harassment in the second degree, directed him to comply with an order of protection dated April 28, 2011, and directed him to complete a batterer's program and an alcohol abuse program.
ORDERED that the order of fact-finding and disposition is modified, on the law, by deleting the provision thereof, in effect, finding that the husband committed the family offense of harassment in the second degree with respect to an incident occurring in February 2011; as so modified, the order of disposition is affirmed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence ( seeFamily Ct. Act § 832; 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” (Matter of Richardson v. Richardson, 80 A.D.3d 32, 43–44, 910 N.Y.S.2d 149;see Matter of King v. Edwards, 92 A.D.3d 783, 938 N.Y.S.2d 442).
Here, a fair preponderance of the credible evidence supports the Family Court's determination that the husband committed the family offense of harassment in the second degree when, on March 7, 2011, he made a telephone call to the wife and threatened to kill her and send her in a box or coffin to her parents ( seePenal Law § 240.26[1]; Family Ct. Act § 812; Matter of Williams v. Maise, 85 A.D.3d 933, 925 N.Y.S.2d 839;Matter of Marsha C. v. Latoya D., 224 A.D.2d 522, 638 N.Y.S.2d 129).
However, the Family Court improperly found that the husband committed the family offense of harassment in the second degree with respect to an incident that occurred in February 2011, since that incident was not charged in the petition ( see Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63;Matter of Cavanaugh v. Madden, 298 A.D.2d 390, 392, 751 N.Y.S.2d 225;Matter of Whittemore v. Lloyd, 266 A.D.2d 305, 698 N.Y.S.2d 275).
The parties' remaining contentions are without merit.