| Matter of Kondor v Kondor |
| 2013 NY Slip Op 05747 [109 AD3d 660] |
| August 28, 2013 |
| Appellate Division, Second Department |
| In the Matter of Mercedes Kondor,Respondent, v Zsolt Kondor, Appellant. |
—[*1] Yisroel Schulman, New York, N.Y. (Amanda Beltz of counsel), forrespondent.
In a family offense proceeding pursuant to Family Court Act article 8, Zsolt Kondorappeals from an order of protection of the Family Court, Queens County (Jolly, J.), datedJuly 3, 2012, 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, tostay away from the petitioner until and including July 3, 2017.
Ordered that the order of protection is modified, on the law, by adding thereto adecretal paragraph finding that aggravating circumstances exist, including the use of adangerous instrument by Zsolt Kondor against the petitioner; 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 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 bythe record (see Matter ofShields v Brown, 107 AD3d 1005 [2013]; Matter of Alicea v Alfano, 83 AD3d 1054 [2011]; Matter of Creighton vWhitmore, 71 AD3d 1141 [2010]). Here, the evidence adduced at the hearingestablished, by a fair preponderance of the evidence, that the appellant committed thefamily offenses of attempted assault in the second degree, disorderly conduct, andharassment in the second degree, warranting the issuance of an order of protection(see Family Ct Act §§ 812 [1]; 832; Penal Law §§110.00, 120.05 [2]; 240.20 [1]; 240.26 [3]; Matter of Shields v Brown, 107AD3d at 1006; Matter of DelCanto v Behrens, 95 AD3d 1211, 1211-1212 [2012]; Matter of Brito v Vasquez, 93AD3d 842, 843 [2012]; Matter of Harry v Harry, 85 AD3d 790, 791 [2011]).
To issue an order of protection with a duration exceeding two years on the ground ofaggravating circumstances, the Family Court must set forth "on the record and upon theorder of protection" a finding of such aggravating circumstances as defined in FamilyCourt Act § 827 (a) (vii) (Family Ct Act § 842). The statutory definition of"aggravating circumstances" includes five distinct situations, set forth in the disjunctive:(1) "physical injury or serious physical injury to the petitioner caused by the respondent,"(2) "the use of a dangerous instrument against the petitioner by the respondent," (3) "ahistory of repeated violations of prior orders of protection by the respondent," (4) "priorconvictions for crimes against the petitioner by the respondent," "or" (5) "the exposure ofany family or household member to physical injury by the respondent and like incidents,behaviors and occurrences which to the court constitute an immediate and ongoingdanger to the petitioner, or any member of the petitioner's family or household" (FamilyCt Act § 827 [a] [vii]; see e.g. Matter [*2]ofHarry v Harry, 85 AD3d at 791 [finding aggravating circumstances based on"violent and harassing behavior in the presence of (the petitioner) which constitutes animmediate and ongoing danger to her"]; Matter of Guernsey v Guernsey, 37 AD3d 989, 990 [2007][finding aggravating circumstances based on "a history of repeated violations of priororders of protection by the respondent"]; cf. Matter of Pereira-Marshall v Marshall, 48 AD3d 574, 575[2008] [the Family Court's finding of aggravating circumstances was not supported bythe record where there was no evidence to support the allegation of the use of adangerous instrument]).
A finding of aggravating circumstances under the fifth situation set forth in FamilyCt Act § 827 (a) (vii) must be supported by a finding of "an immediate andongoing danger to the petitioner, or any member of the petitioner's family or household"(Family Ct Act § 827 [a] [vii]; see Matter of Clarke-Golding v Golding, 101 AD3d 1117,1118 [2012]; Matter of Harry v Harry, 85 AD3d at 791). To the extent thatcertain language in Matter of Clarke-Golding v Golding (101 AD3d at 1118)might suggest that the "immediate and ongoing danger" requirement pertains to the otherfour situations enumerated in Family Court Act § 827 (a) (vii) as well, it is not tobe construed as such. Where the aggravating circumstances involve the use of adangerous instrument (cf. Penal Law § 10.00 [13]; People v Warren, 98 AD3d634, 635-636 [2012]), the "immediate and ongoing danger" requirement does notapply (Family Ct Act § 827 [a] [vii]; see Matter of Pereira-Marshall vMarshall, 48 AD3d at 575).
Here, the Family Court's finding that aggravating circumstances were present wassupported by the record (see Family Ct Act § 827 [a] [vii]; Matter ofHarry v Harry, 85 AD3d at 791; Matter of Charles v Charles, 21 AD3d 487 [2005]).Therefore, we modify the order of protection to include this finding in compliance withFamily Court Act § 842 (see Matter of Harry v Harry, 85 AD3d at 791;Matter of Charles v Charles, 21 AD3d at 488; Matter of Flascher vFlascher, 298 AD2d 393 [2002]; Matter of Reilly v Reilly, 254 AD2d 361[1998]). Angiolillo, J.P., Chambers, Sgroi and Cohen, JJ., concur.