| Matter of Messana v Messana |
| 2014 NY Slip Op 01754 [115 AD3d 860] |
| March 19, 2014 |
| Appellate Division, Second Department |
| In the Matter of Michael Messana,Respondent, v Jennifer Messana, Appellant. |
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In a family offense proceeding pursuant to Family Court Act article 8, JenniferMessana appeals from an order of protection of the Family Court, Suffolk County(Burke, Ct. Atty. Ref.), dated December 4, 2012, which, after a fact-finding hearing, andupon a finding that she committed the family offense of harassment in the second degree,directed her, inter alia, to refrain from harassing Michael Messana for a period of twoyears.
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(see Family Ct Act § 832; Matter of Saldivar v Cabrera, 109 AD3d 831 [2013]; Matter of Parameswar vParameswar, 109 AD3d 473, 474 [2013]; Matter of Bazante v Bazante, 107 AD3d 707 [2013]; Matter of Salazar v Melendez,97 AD3d 754, 755 [2012]). The determination of whether a family offense wascommitted is a factual issue to be resolved by the Family Court, and that court'sdetermination regarding the credibility of witnesses is entitled to great weight on appealunless clearly unsupported by the record (see Matter of Winfield v Gammons, 105 AD3d 753, 754[2013]; Matter of Jackson vIdlett, 103 AD3d 723 [2013]; Matter of Kanterakis v Kanterakis, 102 AD3d 784, 785[2013]).
Here, contrary to the appellant's contention, a fair preponderance of the credibleevidence supports the Family Court's determination that she committed acts constitutingthe family offense of harassment in the second degree, warranting the issuance of anorder of protection (see Family Ct Act § 812 [1]; Penal Law §240.26 [1]; Matter of Saldivar v Cabrera, 109 AD3d at 832; Matter ofParameswar v Parameswar, 109 AD3d at 474; Matter of Bazante v Bazante,107 AD3d at 707-708). Contrary to the appellant's contention, the intent to commitharassment in the second degree is properly inferred from her conduct and thesurrounding circumstances (seePeople v Bueno, 18 NY3d 160, 169 [2011]; People v Smith, 79 NY2d309, 315 [1992]; People v Bracey, 41 NY2d 296, 301 [1977]; People v Mollaie, 81 AD3d1448, 1449 [2011]; Lynn vState of New York, 33 AD3d 673, 674 [2006]; Matter of Reiss v Reiss,221 AD2d 280 [1995]; cf.People v Caulkins, 82 AD3d 1506, 1507 [2011]). Rivera, J.P., Balkin,Hinds-Radix and Maltese, JJ., concur.