Sinclair v. Batista-Mall

50 A.D.3d 1044, 854 N.Y.S.2d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 2008
• Status: Published

Opinion

In a family offense proceeding pursuant to Family Court Act article 8, the husband appeals from an order of protection of the Family Court, Suffolk County (Simeone, J.), dated May 15, 2007, which, after a hearing, and upon a finding that he committed two family offenses, inter alia, directed him to stay away from the wife until May 15, 2008.

Ordered that the order is affirmed, without costs or disbursements; and it is further,

Ordered that the finding that the husband committed a family offense in October 2006 is vacated.

We agree with the husband that a fair preponderance of the credible evidence did not support the Family Court’s determination that he committed a family offense with respect to an incident that the wife alleged took place in October 2006 (see Family Ct Act §§ 812, 832; Matter of Patton v Torres, 38 AD3d 667 [2007]). However, contrary to the husband’s contention, with respect to an incident the wife alleged took place in December 2006, a fair preponderance of the credible evidence supported the court’s determination that the husband committed the family offense of menacing in the third degree, warranting the issuance of an order of protection (see Family Ct Act § 812; Penal Law § 120.15; Matter of Mazzola v Mazzola, 280 AD2d 674 [2001]). Miller, J.P., Dillon, McCarthy and Chambers, JJ., concur.