| Matter of Harry v Harry |
| 2011 NY Slip Op 05067 [85 AD3d 790] |
| June 7, 2011 |
| Appellate Division, Second Department |
| In the Matter of Sandy Harry, Respondent, v BernardHarry, Appellant. |
—[*1] Cynthia Domingo-Foraste, Brooklyn, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, Bernard Harry appealsfrom an order of protection of the Family Court, Kings County (Feldman, J.H.O.), dated June 22,2010, which, after a hearing, and, in effect, upon a finding that he had committed certain familyoffenses, directed him, inter alia, to stay away from the petitioner until and including June 21,2015.
Ordered that the order of protection is modified, on the law and the facts, by adding to thefinal decretal paragraph thereof, after the words "this Order of Protection shall remain in forceuntil and including June 21, 2015," the following: "aggravating circumstances exist, includingviolent and harassing behavior by Bernard Harry in the presence of Sandy Harry whichconstitutes an immediate and ongoing danger to her"; as so modified, the order of protection isaffirmed, without costs or disbursements.
"The determination of whether a family offense was committed is a factual issue to beresolved by the hearing court" (Matter ofKaur v Singh, 73 AD3d 1178 [2010] [internal quotation marks omitted]; seeFamily Ct Act §§ 812, 832; Matter of Creighton v Whitmore, 71 AD3d 1141 [2010]; Matter of Halper v Halper, 61 AD3d687 [2009]), "whose determination regarding the credibility of witnesses is entitled to greatweight on appeal unless clearly unsupported by the record" (Matter of Kaur v Singh, 73AD3d at 1178 [internal quotation marks omitted]; see Matter of Creighton v Whitmore,71 AD3d at 1141; Matter of Robbins vRobbins, 48 AD3d 822 [2008]). Here, a fair preponderance of the credible evidencesupports a determination that Bernard Harry committed acts constituting certain family offenses,warranting the issuance of an order of protection (see Family Ct Act § 812; PenalLaw §§ 120.14, 240.20, 240.26; Matter of Yalvac v Yalvac, 83 AD3d 853 [2011]; Matter of Pearlman v Pearlman, 78AD3d 711 [2010]; Matter ofGreener v Greener, 77 AD3d 664 [2010]).
The Family Court provided for an extended period of protection without setting forth anyaggravating circumstances as required by Family Court Act § 842. Nonetheless, the recordreveals that aggravating circumstances exist as Bernard, in threatening Sandy with knives,exhibited violent and harassing behavior in the presence of Sandy which constitutes animmediate and ongoing danger to her (see Family Ct Act § 827 [a] [vii]).Accordingly, we modify the order of protection to include this finding (see Family Ct Act§ 827 [a] [vii]; § 842; Matter of Guernsey v Guernsey, 37 AD3d 989 [2007]; Matterof Reilly v Reilly, 254 AD2d 361 [1998]; cf. Matter of Gelardi v Gelardi, 62 AD3d 701 [2009]; Matter ofRosario WW. v Ellen WW., 309 AD2d 984 [2003]; Matter of Baker v Ratoon, 251AD2d 921 [1998]; Matter of Zirkind v Zirkind, [*2]218AD2d 745 [1995]). Rivera, J.P., Skelos, Hall and Austin, JJ., concur.