| Matter of Sinclair v Batista-Mall |
| 2008 NY Slip Op 03652 [50 AD3d 1044] |
| April 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Yessenia N. Sinclair,Respondent, v Othoniel Batista-Mall, Appellant. |
—[*1] Gina M. Scelta, Centerport, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the husband appealsfrom 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, interalia, 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 isvacated.
We agree with the husband that a fair preponderance of the credible evidence did not supportthe Family Court's determination that he committed a family offense with respect to an incidentthat the wife alleged took place in October 2006 (see Family Ct Act §§ 812,832; Matter of Patton v Torres, 38AD3d 667 [2007]). However, contrary to the husband's contention, with respect to anincident the wife alleged took place in December 2006, a fair preponderance of the credibleevidence supported the court's determination that the husband committed the family offense ofmenacing in the third degree, warranting the issuance of an order of protection (seeFamily 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.