| Matter of Holder v Francis |
| 2009 NY Slip Op 08009 [67 AD3d 679] |
| November 4, 2009 |
| Appellate Division, Second Department |
| In the Matter of Sherry F. Holder, Respondent, v DonahueA. Francis, Appellant. |
—[*1] Steven Banks, New York, N.Y. (Jane K. Shortell, Yisroel Schulman, and ChristinaBrandt-Young of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Gina Frey of counsel), attorneyfor the child.
In a family offense proceeding pursuant to Family Court Act article 8, Donahue A. Francisappeals from (1) an order of protection of the Family Court, Kings County (Silber, J.), datedMarch 18, 2008, and (2) an order of disposition of the same court, also dated March 18, 2008,which, after a hearing, upon a finding that he had committed family offenses and upon a findingof aggravating circumstances, directed him to observe the conditions of the order of protection.Justice Leventhal has been substituted for former Justice Spolzino (see 22 NYCRR 670.1[c]).
Ordered that the orders are affirmed, without costs or disbursements.
The determination of whether a family offense was committed is a factual issue to beresolved by the Family Court, and its determination regarding the credibility of witnesses mustbe given great weight on appeal unless clearly unsupported by the record (see Matter of Nusbaum v Nusbaum, 59AD3d 725 [2009]; Matter of Huntv Hunt, 51 AD3d 924, 925 [2008]; Matter of Kraus v Kraus, 26 AD3d 494, 495 [2006]). Here, therecord supports the Family Court's determination that the petitioner established, by apreponderance of the evidence, that the appellant committed certain family offenses warrantingthe issuance of an order of protection (see Family Ct Act §§ 812, 832).Further, the record reveals the existence of aggravating circumstances which justified the FamilyCourt's three-year order of protection with respect to the petitioner and the parties' child. Theappellant exhibited violent and harassing behavior either in the presence of the petitioner alone,or while their child was present, even after a temporary order of protection was in effect, whichconstituted an immediate and ongoing danger to them (see Matter of Charlene J.R. v WalterA.M., 307 AD2d 1038, 1039 [2003]; Matter of Reilly v Reilly, 254 AD2d 361, 362[1998]; Matter of Muller v Muller, 221 AD2d 635, 637 [1995]).[*2]
The appellant was not denied the right to counsel by theFamily Court's decision to grant his request to proceed without an attorney. Although a party in aFamily Court Act article 8 proceeding has the right to be represented by counsel, that right canbe waived, as long as the waiver is knowing, intelligent, and voluntary (see Matter of Jetter v Jetter, 43 AD3d821, 822 [2007]). Here, the appellant's conduct during the course of the lengthy proceedingsin this matter was sufficient to establish the validity of his waiver of the right to counsel evenwithout the "searching inquiry" (People v Slaughter, 78 NY2d 485, 491 [1991]; seeMatter of Jetter v Jetter, 43 AD3d at 822) that is ordinarily necessary.
The appellant's remaining arguments are without merit. Santucci, J.P., Florio, Leventhal andLott, JJ., concur.