| Matter of Jackson v Idlett |
| 2013 NY Slip Op 00916 [103 AD3d 723] |
| February 13, 2013 |
| Appellate Division, Second Department |
| In the Matter of Alan Randy Jackson,Respondent, v Samantha Idlett, Appellant. |
—[*1] Kenneth M. Tuccillo, Hastings-on-Hudson, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the motherappeals from an order of fact-finding and disposition of the Family Court, Kings County(Gruebel, J.), dated January 9, 2012, which, after a hearing, found that she hadcommitted the family offenses of harassment in the second degree and menacing in thethird degree and directed her to comply with the conditions set forth in an order ofprotection of the same court, also dated January 9, 2012.
Ordered that the order of fact-finding and disposition is modified, on the facts, bydeleting the provision thereof finding that the mother committed the family offense ofmenacing in the third degree; as so modified, the order of fact-finding and disposition isaffirmed, without costs or disbursements.
The mother's voluntary appearance in court with respect to the family offensepetition and failure to raise any objection to the manner of service of the petition, as wellas her active participation at the fact-finding hearing, defeats her current claim that theFamily Court did not obtain personal jurisdiction over her because she was not servedwith notice of the father's petition (see Family Ct Act § 167; Matter of Wood v Brown, 26AD3d 390 [2006]).
The determination of whether a family offense was committed is a factual issue to beresolved by the Family Court, and that court's determination regarding the credibility ofwitnesses is entitled to great weight on appeal unless clearly unsupported by the record(see Matter of Creighton vWhitmore, 71 AD3d 1141 [2010]). Here, a fair preponderance of the credibleevidence adduced at the fact-finding hearing supported a finding that the appellantcommitted the family offense of harassment in the second degree (see Penal Law§ 240.26 [3]; Matter ofClarke v Clarke, 8 AD3d 375 [2004]; Matter of DeNobile v Tenaglia,299 AD2d 409 [2002]). However, there was insufficient evidence that the mothercommitted the family offense of menacing in the third degree (see Penal Law§ 120.15; Matter ofBrooklyn B., 77 AD3d 934, 935 [2010]; Matter of Ashley C., 59 AD3d 715, 715-716 [2009]; Matter of Davonte B., 44AD3d 763, 764 [2007]). Nevertheless, under the particular circumstances of thiscase, we conclude that the duration of the order of protection should not change.
The mother's remaining contention is not properly before this Court. Rivera, J.P.,Lott, Roman and Sgroi, JJ., concur.