Marte v. Caraballo

Apr 30, 2014
Versions:116 A.D.3d 1050
983 N.Y.S.2d 881

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” (Creighton 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.