| Matter of Bessent v Bessent |
| 2014 NY Slip Op 00504 [113 AD3d 847] |
| January 29, 2014 |
| Appellate Division, Second Department |
| In the Matter of Lisa Bessent, Respondent, v OmarBessent, Appellant. (Proceeding No. 1.) In the Matter of Omar Bessent, Appellant, v LisaBessent, Respondent. (Proceeding No. 2.) |
—[*1] Raegan Johnston, Brooklyn, N.Y., for respondent.
In related child custody and family offense proceedings, the husband appeals, aslimited by his brief, from so much of an order of fact-finding and disposition of theSupreme Court, Kings County (IDV Part) (Henry, J.), dated April 26, 2012, as, after ahearing, found that he committed certain family offenses within the meaning of FamilyCourt Act § 812, and, inter alia, directed him to stay away from the wife for aperiod of two years.
Ordered that the order of fact-finding and disposition is modified, on the law, bydeleting the provision thereof finding that the husband committed the family offense ofharassment in the second degree with respect to an incident occurring in November2011; as so modified, the order of fact-finding and disposition is affirmed insofar asappealed from, without costs or disbursements.
A family offense must be established by a fair preponderance of the evidence (seeFamily Ct Act § 832; Matter of Pearlman v Pearlman, 78 AD3d 711, 712[2010]). "The determination of whether a family offense was committed is a factual issueto be resolved by the [trial] [c]ourt, and that court's determination regarding thecredibility of witnesses is entitled to great weight on appeal and will not be disturbed ifsupported by the record" (Matter of Richardson v Richardson, 80 AD3d 32, 43-44[2010]; see Matter of King vEdwards, 92 AD3d 783 [2012]).
Here, a fair preponderance of the credible evidence supports the Supreme Court'sdetermination that the husband committed the family offenses of attempted assault in thethird degree and harassment in the second degree. The husband's actions during incidentsthat occurred in November 2009, December 2009, January 2011, and March 2011involved him throwing the wife onto a bed while she was pregnant, causing her toexperience cramping and spotting, punching her in the forehead and squeezing hertemple causing swelling, covering her nose and mouth causing a [*2]nosebleed, striking her on the mouth, and holding her bythe throat (see Penal Law §§ 110.00, 120.00, 240.26 [1]; Family CtAct § 812).
However, the Supreme Court improperly found that the husband committed thefamily offense of harassment in the second degree relating to an incident that occurred inNovember 2011, since that incident was not charged in the amended petition (see Matter of Salazar vMelendez, 97 AD3d 754, 755 [2012]; Matter of Czop v Czop, 21 AD3d 958, 959 [2005];Matter of Cavanaugh v Madden, 298 AD2d 390, 392 [2002]).
The husband's remaining contentions are without merit. Dillon, J.P., Leventhal, Halland Austin, JJ., concur.