| Matter of Pearlman v Pearlman |
| 2010 NY Slip Op 07941 [78 AD3d 711] |
| November 3, 2010 |
| Appellate Division, Second Department |
| In the Matter of Donna Pearlman, Respondent, v HenryPearlman, Appellant. |
—[*1]
In a family offense proceeding pursuant to Family Court Act article 8, the father appeals (1) froman order of fact-finding and disposition of the Family Court, Westchester County (Capeci, J.), datedJune 24, 2009, which, after fact-finding and dispositional hearings, found that he had committed thefamily offense of disorderly conduct, and directed the issuance of an order of protection in favor of thepetitioner and against him based upon a finding of aggravating circumstances, (2) from an order ofprotection of the same court dated June 17, 2009, which, inter alia, directed him to stay away from,and refrain from communicating with, the petitioner and the parties' child for a period up to andincluding June 17, 2014, and to refrain from assaulting, stalking, harassment, aggravated harassment,menacing, reckless endangerment, disorderly conduct, intimidation, criminal mischief, threats or anycriminal offense against the petitioner, and (3), as limited by his brief, from so much of an order of thesame court, also dated June 17, 2009, as denied his motion for a mistrial.
Ordered that the appeal from the second order dated June 17, 2009, is dismissed, without costs ordisbursements, as that order was superseded by the order of fact-finding and disposition dated June 24,2009; and it is further,
Ordered that the order of fact-finding and disposition and the order of protection are affirmed,without costs or disbursements.
"A family offense must be established by a fair preponderance of the evidence (see FamilyCt Act § 832; Matter ofNelson-Waller v Waller, 60 AD3d 1068 [2009]). The determination of whether a familyoffense was committed is a factual issue to be resolved by the Family Court" (Matter of Thomas v Thomas, 72 AD3d834, 835 [2010] [internal quotation marks omitted]; see Matter of Nusbaum v Nusbaum,[*2]59 AD3d 725 [2009]; Matter of Kraus v Kraus, 26 AD3d 494, 495 [2006]), and the FamilyCourt's determination regarding the credibility of witnesses is entitled to great weight on appeal (seeMatter of Topper v Topper, 271 AD2d 613 [2000]; Matter of Hallissey v Hallissey, 261AD2d 544 [1999]; Matter of Dendy v Bonelli, 260 AD2d 633 [1999]).
Here, the evidence adduced at the fact-finding hearing proved by the requisite preponderance ofthe evidence that the appellant committed acts constituting disorderly conduct (see Family CtAct § 812 [1]; Penal Law § 240.20 [2], [3]; Matter of Medranda v Mondelli, 74 AD3d 972 [2010]).
We agree with the appellant that the Family Court erred in admitting evidence at the dispositionalhearing concerning an incident that was not "relatively contemporaneous" (Matter of Ann P. v Nicholas C.P., 44 AD3d776, 777 [2007] [internal quotation marks omitted]; see Matter of Thomas v Thomas, 32 AD3d 521 [2006]; Swersky vSwersky, 299 AD2d 540, 541 [2002]). However, its finding of aggravating circumstances wasbased on numerous other factors, including its own observation of the appellant's "wildly erratic andinappropriate behavior and affect in the courtroom," that were sufficient to support the finding, evenwithout the incident of domestic violence that occurred three or five years prior to the filing of the familyoffense petition (see Family Ct Act § 827 [a] [vii]).
There is no merit to the appellant's argument that he was subjected to double jeopardy because thepetitioner filed a criminal complaint regarding an alleged violation of the temporary order of protectionissued by the Family Court, and was then permitted to testify about the alleged violation during thedispositional hearing. While double jeopardy concerns may come into play where a person allegedlywilfully violates an order of protection, those considerations are not relevant "where, as here, thepetitioner is merely seeking an order of protection, a remedy which is not punitive and does not involve,at this stage, incarceration" (Matter of Alfeo v Alfeo, 306 AD2d 471, 472 [2003]; see Matter of Gowrie v Squires, 71 AD3d1023, 1024-1025 [2010]).
Contrary to the appellant's contention, the Family Court properly permitted the petitioner to testify,during the dispositional hearing, regarding incidents that had been alleged in violation petitions not thenbefore the court. "A broader standard of admissibility of evidence is available on the dispositionalhearing than at the fact-finding hearing, and evidence may be admitted as long as it is 'material andrelevant' (Family Ct Act § 834), including hearsay and other evidence otherwise incompetent"(Matter of V.C. v H.C., 257 AD2d 27, 32 [1999]).
The appellant's remaining contentions are without merit or have been rendered academic by anorder of the Family Court, Rockland County, dated January 26, 2010, which granted him visitationwith the parties' son. Rivera, J.P., Covello, Santucci and Sgroi, JJ., concur.