| Matter of Chastity F. v Ernest G. |
| 2010 NY Slip Op 07445 [77 AD3d 1112] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Chastity F., Respondent, v Ernest G.,Appellant. |
—[*1] Omshanti Parnes, Plattsburgh, attorney for the child.
Lahtinen, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered October 22, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, to find respondent in violation of an order of protection.
In August 2009, Family Court issued a temporary order of protection directing respondent to,among other things, stay at least 1,000 feet away from petitioner and refrain from anycommunication with or intimidation of her. The next month, while both individuals were in theClinton County Courthouse awaiting an appearance, respondent allegedly walked within about15 feet of petitioner, pointed his finger at her and made an intimidating statement to her. She thenfiled the current petition. Following a hearing, Family Court found that the credible evidenceestablished beyond a reasonable doubt that respondent had made a statement to petitioner, whichthe court characterized as being made in a loud and threatening tone, accompanied by gestures.Family Court concluded that this conduct constituted a willful violation of its earlier order and,after detailing respondent's lengthy history in various Family Court proceedings, the courtimposed a six-month jail sentence (see Family Ct Act § 846-a). Respondentappeals.
Respondent argues that there was insufficient proof to find that he willfully violated terms ofan order that were clear. "In any Family Court Act family offense proceeding in which a party'sfailure to comply with a lawful order of protection is alleged, if Family Court is satisfied [*2]by competent proof that the respondent has willfully failed to obeyany such order, it may punish such disobedience by imposing a jail sentence not exceeding sixmonths" (Matter of Leighton-Ryan v Ryan, 274 AD2d 775, 776 [2000] [internalquotation marks and citations omitted]; see Matter of Lichorowic v Lichorowic, 241AD2d 624, 625 [1997]). Since Family Court has the opportunity to view the witnesses as theytestify, we typically accord deference to its credibility determinations (see Matter of Cobane v Cobane, 57AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]; Matter of Moran v Cavanaugh, 39AD3d 954, 956 [2007]; Matter ofChristian EE., 33 AD3d 1106, 1107 [2006]).
Here, respondent acknowledged prior receipt of the order of protection. The order explicitlyprovided that respondent was to refrain from communication with or intimidation of petitioner,and that the failure to obey the terms of the order could result in, among other things,incarceration of up to six months. In its decision, Family Court made clear that its finding of awillful violation was premised on the statement by respondent to petitioner. The court's findingwas not, as suggested by respondent, based on his physical proximity to petitioner, which hadresulted from both individuals being in the courthouse at the same time for a court appearance.While conflicting proof was presented at the hearing regarding what was actually said and towhom it was said by respondent, Family Court credited petitioner's proof. We discern no reasonin this record not to accept that credibility determination and, in light of such credibilitydetermination, there is ample evidence of a willful violation regarding the provision of the orderproscribing communication by respondent directed toward petitioner.
Since respondent has completed his jail sentence, his contention that the sentence was harshis moot (see Matter of Duane H. v TinaJ., 66 AD3d 1148, 1149 [2009]).
Cardona, P.J., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.