| Matter of Foxworth v DeJesus |
| 2010 NY Slip Op 05393 [74 AD3d 1064] |
| June 15, 2010 |
| Appellate Division, Second Department |
| In the Matter of Mary-Jane Foxworth,Respondent, v Wilson DeJesus, Appellant. |
—[*1] Law Offices of Austin I. Idehen, PLLC, Jamaica, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Anne Glatz and Barbara H. Dildine of counsel),attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, Wilson DeJesusappeals from an order of protection of the Family Court, Kings County (Ross, J.H.O.), datedMay 28, 2009, which, after a hearing, and upon a finding that he committed the family offense ofdisorderly conduct and a finding of aggravating circumstances, directed him to stay away fromthe former wife and her home and place of employment for a period of five years and to stayaway from the subject child exclusive of court-ordered visitation for a period of five years.
Ordered that the order of protection is reversed, on the law, without costs or disbursements,the petition is denied, and the proceeding is dismissed.
At a fact-finding hearing pursuant to Family Court Act article 8, the petitioner bears theburden of establishing the allegations in the petition by a "fair preponderance of the evidence"(Family Ct Act § 832), and the Family Court's credibility determinations after afact-finding hearing are entitled to great weight on appeal unless clearly unsupported by therecord (see Matter of Creighton vWhitmore, 71 AD3d 1141 [2010]; Matter of Nusbaum v Nusbaum, 59 AD3d 725 [2009]). Here, theFamily Court's findings are not supported by the record. In addition to the appellant's testimony,in which he denied committing any of the acts constituting the offenses alleged in the petition,the record contains the testimony of an apparently disinterested witness to the effect that he waspresent on April 18, 2008, at the time and place of the alleged incident that formed the basis ofthe Family Court's fact-finding, and that the incident never occurred. We note that thepetitioner's current husband, who allegedly was standing next to the petitioner during thatincident, and who was, according to the petitioner, the primary target of the appellant'saggressive conduct, did not testify at the hearing and that, under the circumstances, hisunexplained absence is significant (cf. People v Gonzalez, 68 NY2d 424, 427 [1986]).Since the petitioner failed to establish by a fair preponderance of the evidence that the appellantcommitted the family offense of disorderly conduct (see Family Ct Act § 812 [1];Penal Law § 240.20; Matter ofPatton v Torres, 38 AD3d 667, 668 [2007]; Matter of Garland v Garland, 3 AD3d 496 [2004]; cf. Matter of Benincasa v Benincasa,65 AD3d 1040, 1041 [2009]), the order of protection appealed from must be reversed, thefamily offense petition denied, and the family [*2]offenseproceeding dismissed (see Matter of Cavanaugh v Madden, 298 AD2d 390, 392 [2002]).Fisher, J.P., Dickerson, Eng and Belen, JJ., concur.