| Matter of Salazar v Melendez |
| 2012 NY Slip Op 05642 [97 AD3d 754] |
| July 18, 2012 |
| Appellate Division, Second Department |
| In the Matter of Pilar Salazar, Respondent, v CandidoMelendez, Appellant. |
—[*1] Warren S. Hecht, Forest Hills, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the husband appealsfrom an order of fact-finding and disposition of the Family Court, Orange County (Bivona, J.),dated July 19, 2011, which, after a hearing, inter alia, found that he committed two familyoffenses of harassment in the second degree, directed him to comply with an order of protectiondated April 28, 2011, and directed him to complete a batterer's program and an alcohol abuseprogram.
Ordered that the order of fact-finding and disposition is modified, on the law, by deleting theprovision thereof, in effect, finding that the husband committed the family offense of harassmentin the second degree with respect to an incident occurring in February 2011; as so modified, theorder of disposition is affirmed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence (seeFamily Ct Act § 832; Matter ofPearlman v Pearlman, 78 AD3d 711, 712 [2010]). "The determination of whether afamily offense was committed is a factual issue to be resolved by the Family Court, and thatcourt's determination regarding the credibility of witnesses is entitled to great weight on appealand will not be disturbed if supported by the record" (Matter of Richardson v Richardson, 80 AD3d 32, 43-44 [2010]; see Matter of King v Edwards, 92AD3d 783 [2012]).
Here, a fair preponderance of the credible evidence supports the Family Court'sdetermination that the husband committed the family offense of harassment in the second degreewhen, on March 7, 2011, he made a telephone call to the wife and threatened to kill her and sendher in a box or coffin to her parents (see Penal Law § 240.26 [1]; Family Ct Act§ 812; Matter of Williams vMaise, 85 AD3d 933 [2011]; Matter of Marsha C. v Latoya D., 224 AD2d 522[1996]).
However, the Family Court improperly found that the husband committed the family offenseof harassment in the second degree with respect to an incident that occurred in February 2011,since that incident was not charged in the petition (see Matter of Czop v Czop, 21 AD3d 958, 959 [2005]; Matterof Cavanaugh v Madden, 298 AD2d 390, 392 [2002]; Matter of Whittemore v Lloyd,266 AD2d 305 [1999]).[*2]
The parties' remaining contentions are without merit.Balkin, J.P., Hall, Lott and Cohen, JJ., concur.