Marte v. Caraballo

Appellate Division of the Supreme Court of New York

Marte v. Caraballo

116 A.D.3d 1050, 983 N.Y.S.2d 881

Appellate Division of the Supreme Court of the State of New York·Decided April 30, 2014·Published·Cited by 3 cases

Opinion

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Arias, J.), dated August 13, 2013, which, after a hearing, denied the petition and dismissed the proceeding.

Ordered that the order is 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 AD3d 337, 340 [2013], quoting Family Ct Act § 832; see Matter of Testa v Strickland, 99 AD3d 917, 917 [2012]). “The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court” (Matter of Creighton v Whitmore, 71 AD3d 1141, 1141 [2010]; see Family Ct Act §§ 812, 832; Matter of Yalvac v Yalvac, 83 AD3d 853, 854 [2011]), whose “determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of [1051]*1051Creighton v Whitmore, 71 AD3d at 1141; see Matter of Yalvac v Yalvac, 83 AD3d at 854).

Here, the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent’s act of allegedly sending her a text message constituted the family offense of aggravated harassment in the second degree (see Family Ct Act § 812 [1]; Penal Law § 240.30 [1]). Additionally, the petitioner failed to establish, by a fair preponderance of the evidence, that certain alleged conduct by the respondent in 2003 constituted the family offense of harassment in the second degree (see Family Ct Act § 812 [1]; Penal Law § 240.26). The Family Court’s determination that the petitioner’s testimony was lacking in credibility is entitled to great weight on appeal, as it is supported by the record (see Matter of Bah v Bah, 112 AD3d 921, 922 [2013]; see generally Matter of Shields v Brown, 107 AD3d 1005, 1006 [2013]; Matter of Yalvac v Yalvac, 83 AD3d at 854).

Accordingly, the Family Court properly denied the petition and dismissed the proceeding. Balkin, J.P, Dickerson, Roman and Miller, JJ., concur.

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In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Arias, J.), dated August 13, 2013, which, after a hearing, denied the petition and dismissed the proceeding.

Ordered that the order is 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 AD3d 337, 340 [2013], quoting Family Ct Act § 832; see Matter of Testa v Strickland, 99 AD3d 917, 917 [2012]). “The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court” (Matter of Creighton v Whitmore, 71 AD3d 1141, 1141 [2010]; see Family Ct Act §§ 812, 832; Matter of Yalvac v Yalvac, 83 AD3d 853, 854 [2011]), whose “determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of [1051]*1051Creighton v Whitmore, 71 AD3d at 1141; see Matter of Yalvac v Yalvac, 83 AD3d at 854).

Here, the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent’s act of allegedly sending her a text message constituted the family offense of aggravated harassment in the second degree (see Family Ct Act § 812 [1]; Penal Law § 240.30 [1]). Additionally, the petitioner failed to establish, by a fair preponderance of the evidence, that certain alleged conduct by the respondent in 2003 constituted the family offense of harassment in the second degree (see Family Ct Act § 812 [1]; Penal Law § 240.26). The Family Court’s determination that the petitioner’s testimony was lacking in credibility is entitled to great weight on appeal, as it is supported by the record (see Matter of Bah v Bah, 112 AD3d 921, 922 [2013]; see generally Matter of Shields v Brown, 107 AD3d 1005, 1006 [2013]; Matter of Yalvac v Yalvac, 83 AD3d at 854).

Accordingly, the Family Court properly denied the petition and dismissed the proceeding. Balkin, J.P, Dickerson, Roman and Miller, JJ., concur.

Marte v. Caraballo, 116 A.D.3d 1050, 983 N.Y.S.2d 881 (N.Y. Ct. App. 2014).

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