| Matter of Del Canto v Behrens |
| 2012 NY Slip Op 04005 [95 AD3d 1211] |
| May 23, 2012 |
| Appellate Division, Second Department |
| In the Matter of Jesica Del Canto, Respondent, v StevenBehrens, Appellant. |
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In a family offense proceeding pursuant to Family Court Act article 8, Steven Behrensappeals from an order of protection of the Family Court, Queens County (Lebwohl, J.), datedAugust 23, 2011, which, after a hearing, and upon a finding that he had committed a familyoffense within the meaning of Family Court Act § 812, directed him, inter alia, to stayaway from the petitioner for a period of three years until and including August 23, 2014.
Ordered that the order of protection is modified, on the law, by deleting the provision thereofdirecting that the order of protection shall remain in effect until and including August 23, 2014,and substituting therefor a provision directing that the order of protection shall remain in effectuntil and including August 23, 2013; as so modified, the order of protection is affirmed, withoutcosts or disbursements.
The determination of whether a family offense was committed is a factual issue to beresolved by the Family Court, and any credibility determination made in connection therewith isentitled to deference on appeal (seeMatter of Brito v Vasquez, 93 AD3d 842 [2012]; Matter of Greener v Greener, 77 AD3d 664 [2010]; Matter of Holder v Francis, 67 AD3d679 [2009]; Matter of Fiore vFiore, 34 AD3d 803 [2006]; Matter of Willis v Watson, 27 AD3d 760 [2006]). Here, theevidence adduced at the hearing established, by a fair preponderance of the evidence, that theappellant committed the family offenses of harassment in the second degree and aggravatedharassment in the second degree, warranting the issuance of an order of protection (seeFamily Ct Act §§ 812, 832; Penal Law § 240.26 [3]; § 240.30 [1];Matter of Drury v Drury, 90 AD3d754, 755 [2011]; Matter of Testmanv Roman, 78 AD3d 719, 720 [2010]; Matter of Larson v Gilliam, 49 AD3d 650 [2008]; Matter ofFiore v Fiore, 34 AD3d at 803).
However, the Family Court failed to set forth any finding of aggravating circumstances "onthe record and upon the order of protection," as is required to issue an order of protection with aduration exceeding two years (Family Ct Act § 842), and insufficient evidence waspresented at the hearing to support any finding of aggravating circumstances (see FamilyCt Act § 827 [a] [vii]; Matter of Drury v Drury, 90 AD3d at 755). Accordingly, theduration of the order of protection may not exceed two years (see Matter of Brito v Vasquez, 93 AD3d 842 [2012]; Matter ofDrury v Drury, 90 AD3d at 755; Matter of Gelardi v Gelardi, 62 AD3d 701, 702 [2009]), and wemodify the order to direct that it remain in effect until and including August 23, 2013. Angiolillo,J.P., Eng, Lott and Cohen, JJ., concur.