| Matter of Hubbard v Ponce DeLeon |
| 2013 NY Slip Op 05211 [108 AD3d 628] |
| July 10, 2013 |
| Appellate Division, Second Department |
| In the Matter of Donna Hubbard,Respondent, v Raymond Ponce DeLeon, Appellant. |
—[*1] Joan L. Beranbaum, New York, N.Y. (Carol M. North of counsel), forrespondent.
In a family offense proceeding pursuant to Family Court Act article 8, RaymondPonce DeLeon appeals from (1) an order of protection of the Family Court, KingsCounty (Hepner, J.), dated January 31, 2012, which, inter alia, directed him to stay awayfrom the petitioner for a period of five years, and (2) an order of fact-finding anddisposition of the same court dated February 1, 2012, which, after a hearing, found thathe had committed certain family offenses and which, upon a finding of aggravatingcircumstances, directed him to comply with the conditions set forth in the order ofprotection dated January 31, 2012, and placed him on probation under the supervision ofthe Probation Department of Kings County for a period of one year.
Ordered that the appeal from so much of the order of fact-finding and disposition asplaced the appellant on probation under the supervision of the Probation Department ofKings County for a period of one year is dismissed as academic, as the period ofprobation has expired; and it is further,
Ordered that the order of protection is affirmed, without costs or disbursements; andit is further,
Ordered that the order of fact-finding and disposition is modified, on the facts, bydeleting the provision thereof finding that the appellant committed the family offense ofattempted assault in the second degree; as so modified, the order of fact-finding anddisposition is affirmed insofar as reviewed, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence(see Family Court Act § 832; Matter of Chu Man Woo v Qiong Yun Xi, 106 AD3d 818[2013]; Matter of Marte vBiondo, 104 AD3d 947 [2013]). "The determination of whether a family offensewas committed is a factual issue to be resolved by the Family Court, and the credibilitydeterminations of that court, which has the advantage of seeing and hearing thewitnesses, are entitled to considerable deference on appeal" (Matter of Marte vBiondo, 104 AD3d at 947; see Matter of Smith v Amedee, 101 AD3d 1033 [2012]).[*2]
Here, a fair preponderance of the credibleevidence did not support the Family Court's determination that the appellant committedthe family offense of attempted assault in the second degree (see Family Ct Act§§ 812 [1]; 832; Penal Law §§ 110.00, 120.05 [1]; People v McGee, 20 NY3d513, 519 [2013]; cf. Peoplev Andrews, 78 AD3d 1229, 1230-1231 [2010]; People v Bruno, 47 AD3d1064, 1066 [2008]). However, a preponderance of the credible evidence adduced atthe fact-finding hearing supports the Family Court's finding that the appellant committedthe family offenses of assault in the third degree (see Penal Law § 120.00[1]; Matter of Stewart vLassiter, 103 AD3d 734 [2013]; cf. Matter of Opray v Fitzharris, 84 AD3d 1092, 1093[2011]), menacing in the third degree (see Penal Law § 120.15; Matter of Denzel F., 44 AD3d389, 390 [2007]), stalking in the fourth degree (see Penal Law §120.45 [1]; Matter of Ciccone vCiccone, 73 AD3d 1052 [2010]), harassment in the second degree (seePenal Law § 240.26 [1]; Matter of Janice M. v Terrance J., 96 AD3d 482 [2012]; Matter of Czop v Czop, 21AD3d 958, 959 [2005]), and disorderly conduct (see Family Ct Act §812 [1]; Penal Law § 240.20 [1]; Matter of Hagopian v Hagopian, 66 AD3d 1021, 1022[2009]; Matter of Miriam M. vWarren M., 51 AD3d 581 [2008]; Matter of Bhanote v Bhanote, 22 AD3d 490 [2005]).Further, the Family Court's finding that aggravating circumstances were present wassupported by the record (see Family Ct Act § 827 [a] [vii]; Matter of Kaur v Singh, 101AD3d 877, 878 [2012]; Matter of Bailey-Felton v Felton, 90 AD3d 652 [2011]; Matter of Holder v Francis, 67AD3d 679 [2009]).
Based on the foregoing, there is no basis to disturb the order of protection. Rivera,J.P., Skelos, Leventhal and Lott, JJ., concur.