| Matter of Marte v Caraballo |
| 2014 NY Slip Op 02940 [116 AD3d 1050] |
| April 30, 2014 |
| Appellate Division, Second Department |
| In the Matter of Laneska Marte,Appellant, v Miguel Caraballo, Respondent. |
—[*1] Ade Agbayewa, Fresh Meadows, N.Y., for respondent.
In a family offense proceeding pursuant to Family Court Act article 8, the petitionerappeals from an order of the Family Court, Queens County (Arias, J.), dated August 13,2013, which, after a hearing, denied the petition and dismissed the proceeding.
Ordered that the order is affirmed, without costs or disbursements.
"In a family offense proceeding, the petitioner has the burden of establishing, by a'fair preponderance of the evidence,' that the charged conduct was committed as allegedin the petition" (Matter ofCassie v Cassie, 109 AD3d 337, 340 [2013], quoting Family Ct Act §832; see Matter of Testa vStrickland, 99 AD3d 917, 917 [2012]). "The determination of whether a familyoffense was committed is a factual issue to be resolved by the hearing court" (Matter of Creighton vWhitmore, 71 AD3d 1141, 1141 [2010]; see Family Ct Act§§ 812, 832; Matter of Yalvac v Yalvac, 83 AD3d 853, 854 [2011]),whose "determination regarding the credibility of witnesses is entitled to great weight onappeal unless clearly unsupported by the record" (Matter of Creighton vWhitmore, 71 AD3d at 1141; see Matter of Yalvac v Yalvac, 83 AD3d at854).
Here, the petitioner failed to establish, by a fair preponderance of the evidence, thatthe respondent's act of allegedly sending her a text message constituted the familyoffense of aggravated harassment in the second degree (see Family Ct Act§ 812 [1]; Penal Law § 240.30 [1]). Additionally, the petitioner failed toestablish, by a fair preponderance of the evidence, that certain alleged conduct by therespondent in 2003 constituted the family offense of harassment in the second degree(see Family Ct Act § 812 [1]; Penal Law § 240.26). The FamilyCourt's determination that the petitioner's testimony was lacking in credibility is entitledto great weight on appeal, as it is supported by the record (see Matter of Bah v Bah, 112AD3d 921, 922 [2013]; seegenerally Matter of Shields v Brown, 107 AD3d 1005, 1006 [2013]; Matterof Yalvac v Yalvac, 83 AD3d at 854).
Accordingly, the Family Court properly denied the petition and dismissed theproceeding. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.