| Matter of Clarke-Golding v Golding |
| 2012 NY Slip Op 09058 [101 AD3d 1117] |
| December 26, 2012 |
| Appellate Division, Second Department |
| In the Matter of Keisha Clarke-Golding,Respondent, v Jeffrey Golding, Appellant. |
—[*1] Ralph Duthely, Jamaica, N.Y., for respondent. Jonathan H. Shim, Jamaica, N.Y., attorney for the child.
In a family offense proceeding pursuant to Family Court Act article 8, Jeffrey Goldingappeals from an order of protection of the Family Court, Queens County (Lebwohl, J.), datedDecember 14, 2011, which, after a hearing, and upon a finding that he committed certain familyoffenses within the meaning of Family Court Act § 812, directed him, inter alia, to stayaway from the petitioner until and including December 14, 2014.
Ordered that the order of protection is modified, on the law and the facts, by deleting theprovision thereof directing that the order of protection shall remain in effect until and includingDecember 14, 2014, and substituting therefor a provision directing that the order of protectionshall remain in effect until and including December 14, 2013; as so modified, the order ofprotection is affirmed, without costs or disbursements.
"The determination of whether a family offense was committed is a factual issue to beresolved by the hearing court" (Matter ofCreighton v Whitmore, 71 AD3d 1141, 1141 [2010]; see Family Ct Act§§ 812, 832; Matter ofArmstrong v Ewing, 82 AD3d 1092 [2011]; Matter of Kaur v Singh, 73 AD3d 1178 [2010]), "and that court'sdetermination regarding the credibility of witnesses is entitled to great weight on appeal unlessclearly unsupported by the record" (Matter of Creighton v Whitmore, 71 AD3d at 1141;see Matter of Kaur v Singh, 73 AD3d at 1178).
Here, a fair preponderance of the credible evidence did not support the Family Court'sdetermination that the appellant committed the family offense of assault in the third degree(see Family Ct Act §§ 812 [1]; 832; Penal Law § 120.00; Matter of Gray v Gray, 55 AD3d909, 910 [2008]; Matter of Ford vPitts, 30 AD3d 419 [2006]; Matter of Strully v Schwartz, 255 AD2d 593[1998]). However, a preponderance of the credible evidence adduced at the fact-finding hearingsupports the Family Court's finding that the appellant committed the family offense of menacingin the third degree (Penal Law § 120.15; Matter of Sinclair v Batista-Mall, 50 AD3d 1044 [2008]; Matterof Mazzola v Mazzola, 280 AD2d 674 [2001]), warranting the issuance of an order ofprotection.[*2]
However, the Family Court failed to set forth any findingof aggravating circumstances "on the record and upon the order of protection" as is required toissue an order of protection with a duration exceeding two years (Family Ct Act § 842),and insufficient evidence was presented at the hearing to support any finding of aggravatingcircumstances (see Family Ct Act § 827 [a] [vii]; Matter of Del Canto v Behrens, 95AD3d 1211 [2012]; Matter of Druryv Drury, 90 AD3d 754, 755 [2011]). In particular, the record does not demonstrate "animmediate and ongoing danger to the petitioner" (Family Ct Act § 827 [a] [vii]). Thus, 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]).Accordingly, we modify the order of protection to direct that it remain in effect until andincluding December 14, 2013. Angiolillo, J.P., Sgroi, Cohen and Miller, JJ., concur.