| Matter of Maiorino v Maiorino |
| 2013 NY Slip Op 04005 [107 AD3d 717] |
| June 5, 2013 |
| Appellate Division, Second Department |
| In the Matter of Adam Maiorino, Sr.,Respondent, v Adam Maiorino, Jr., Appellant. |
—[*1] Zvi Ostrin, New York, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, AdamMaiorino, Jr., appeals (1), as limited by his brief, from so much of an order offact-finding of the Family Court, Kings County (Hepner, J.), dated February 21, 2012, as,after a fact-finding hearing, found that he committed the family offenses of attemptedassault in the third degree, harassment in the second degree (two offenses), menacing inthe third degree, and disorderly conduct, and (2) from an order of protection of the samecourt dated May 22, 2012, which, after a dispositional hearing, inter alia, directed him torefrain from assaulting, stalking, or harassing the petitioner.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder of fact-finding as found that Adam Maiorino, Jr., committed the family offenses ofattempted assault in the third degree, harassment in the second degree (two offenses),menacing in the third degree, and disorderly conduct is deemed to be an application forleave to appeal from that portion of the order of fact-finding, and leave to appeal isgranted (see Family Ct Act § 1112 [a]); and it is further,
Ordered that the order of fact-finding is modified, on the facts, by deleting theprovision thereof finding that Adam Maiorino, Jr., committed the family offense ofdisorderly conduct; as so modified, the order of fact-finding is affirmed insofar asappealed from, without costs or disbursements; and it is further,
Ordered that the order of protection is affirmed, without costs or disbursements.
"A family offense must be established by a fair preponderance of the evidence" (Matter of Thomas v Thomas,72 AD3d 834, 835 [2010]; see Family Ct Act § 832). "Thedetermination of whether a family offense was committed is a factual issue to be resolvedby the Family Court" (Matter ofKanterakis v Kanterakis, 102 AD3d 784, 785 [2013] [internal quotation marksomitted]). "The Family Court's determination regarding the credibility of witnesses isentitled to great weight on appeal, and will not be disturbed if supported by the record"(id.; see Matter of Cruzv Rodriguez, 96 AD3d 838 [2012]; Matter of Lamparillo v Lamparillo, 84 AD3d 1381 [2011]).[*2]
Here, a fair preponderance of the credibleevidence adduced at the fact-finding hearing supports a finding that the appellantcommitted two family offenses of harassment in the second degree (see PenalLaw § 240.26 [1]; Matterof Scanziani v Hairston, 100 AD3d 1007, 1008 [2012]; Matter of Sperling v Sperling,96 AD3d 1067 [2012]), as well as the family offenses of attempted assault in thethird degree (see Penal Law §§ 110.00, 120.00 [1]; Matter of Panico v Panico, 100AD3d 907, 908 [2012]; Matter of Gray v Gray, 55 AD3d 909, 910 [2008]), andmenacing in the third degree (see Penal Law § 120.15; Matter of Baginski vRostkowski, 96 AD3d 1051 [2012]; Matter of Sinclair v Batista-Mall, 50 AD3d 1044 [2008]).However, there is insufficient evidence to establish that the appellant committed thefamily offense of disorderly conduct (see Penal Law § 240.20; Matter of Aruti v Aruti, 88AD3d 700, 701 [2011]; Matter of Hasbrouck v Hasbrouck, 59 AD3d 621, 622[2009]; Matter of Bartley vBartley, 48 AD3d 678, 678-679 [2008]).
Under the circumstances of this case, we find no basis to disturb the order ofprotection (see Matter ofJackson v Idlett, 103 AD3d 723 [2013]). Mastro, J.P., Rivera, Lott and Cohen,JJ., concur.