| Matter of Kaur v Singh |
| 2012 NY Slip Op 08526 [101 AD3d 877] |
| December 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of Sarbjeet Kaur, Respondent, v GurmailSingh, Appellant. (Proceeding No. 1.) In the Matter of Gurmail Singh, Appellant, v SarbjeetKaur, Respondent. (Proceeding No. 2.) |
—[*1] Helene Bernstein, Brooklyn, N.Y., for respondent. Geanine Towers, Brooklyn, N.Y., attorney for the children.
In a visitation proceeding pursuant to Family Court Act article 6 and a related family offenseproceeding pursuant to Family Court Act article 8, the father appeals from (1) an order ofprotection of the Family Court, Queens County (Fitzmaurice, J.), dated November 30, 2011,which, after a fact-finding hearing, directed him, inter alia, to stay away from the parties' minorchild for a period of five years, and (2) an order of the same court dated December 6, 2011,which, after a fact-finding hearing, dismissed his petition seeking visitation with the minor child.
Ordered that the order of protection and the order are affirmed, without costs ordisbursements.
In a family offense proceeding, the allegations asserted in a petition seeking the issuance ofan order of protection must be supported by "a fair preponderance of the evidence" (Family CtAct § 832; see Matter ofHasbrouck v Hasbrouck, 59 AD3d 621 [2009]; Matter of Patton v Torres, 38 AD3d 667, 668 [2007]; Matter ofDabbene v Dabbene, 297 AD2d 812 [2002]; Matter of Hogan v Hogan, 271 AD2d533 [2000]). The determination of whether a family offense was committed is a factual issue tobe resolved by the Family Court, and that court's determination regarding the credibility ofwitnesses is entitled to great weight on appeal and will not be disturbed if supported by therecord (see Matter of Luke v Luke,72 AD3d 689 [2010]; Matter ofHolder v Francis, 67 AD3d 679 [2009]; Matter of Sblendorio v D'Agostino, 60 AD3d 773 [2009]; Matter of Fernandez v Pacheco, 59AD3d 542, 543 [2009]).
At a fact-finding hearing before the Family Court, it was established by a fair preponderanceof the evidence that the father committed the family offenses of reckless [*2]endangerment in the second degree (see Family Ct Act§ 812 [1]; Penal Law § 120.20), menacing in the second degree (see PenalLaw § 120.14 [2]; Matter of Grayv Gray, 55 AD3d 909, 910 [2008]), and assault in the second degree (see PenalLaw § 120.05). Further, the Family Court's finding that aggravating circumstances werepresent was supported by the record (seeMatter of Hassett v Hassett, 4 AD3d 527 [2004]; Matter of Reilly v Reilly, 254AD2d 361, 362 [1998]; Matter of Mawhirt v Mawhirt, 241 AD2d 524 [1997]).Accordingly, the Family Court properly issued an order of protection directing the father, interalia, to stay away from the minor child for a period of five years (see Family Ct Act§ 842).
Contrary to the father's contention, under the circumstances of this case, the Family Court'sdecision not to hold a dispositional hearing prior to issuing the order of protection does notrequire reversal (see Sblendorio v D'Agostino, 60 AD3d at 774; Matter of Hassett v Hassett, 4 AD3d527 [2004]; Matter of Dabbene v Dabbene, 297 AD2d at 813; Matter of Annie C.v Marcellus W., 278 AD2d 177 [2000]; Matter of Quintana v Quintana, 237 AD2d130 [1997]). In addition, upon the exercise of our factual review power, the Family Court'sdisposition was not contrary to the weight of the evidence (see Matter of Sperling v Sperling, 96 AD3d 1067, 1068 [2012];Matter of Sblendorio v D'Agostino, 60 AD3d at 774).
Similarly, the Family Court's determination that the denial of visitation with the father was inthe child's best interests has a sound and substantial basis in the record and, therefore, we find nobasis to disturb it (see Matter of Samia Z., 297 AD2d 385 [2002]; Matter of Licitra vLicitra, 255 AD2d 384 [1998]; Matter of MacEwen v MacEwen, 214 AD2d 572[1995]).
The father's remaining contentions are either unpreserved for appellate review or withoutmerit. Mastro, J.P., Angiolillo, Sgroi and Miller, JJ., concur.