| Matter of Henderson v Henderson |
| 2016 NY Slip Op 01672 [137 AD3d 911] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Kerrie Henderson,Respondent, v Alan Henderson, Jr., Appellant. |
Alan Henderson, Jr., Manorville, NY, appellant pro se.
Appeals from (1) an order of the Family Court, Suffolk County (Linda M. Boggio,Ct. Atty. Ref.), dated April 2, 2015, and (2) an order of protection of that court, alsodated April 2, 2015. The order dated April 2, 2015, after a hearing, found that theappellant committed the family offense of harassment in the second degree. The order ofprotection, upon that finding, directed the appellant, inter alia, to refrain fromcommunicating with the petitioner up to and including October 21, 2015.
Ordered that the order dated April 2, 2015 is affirmed, without costs ordisbursements; and it is further,
Ordered that the appeal from the order of protection is dismissed as academic,without costs or disbursements, as the order of protection has expired by its ownterms.
"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 Matterof Monos v Monos, 123 AD3d 931 [2014]; Matter of Blackett v Blackett, 123 AD3d 923 [2014]).Whether a family offense was committed is a factual issue resolved by the hearing court(see Family Ct Act §§ 812, 832; Matter of Blackett vBlackett, 123 AD3d at 923; Matter of Hodiantov v Aronov, 110 AD3d 881, 882[2013]; Matter of Kaur vSingh, 73 AD3d 1178 [2010]), and the hearing court's determination regardingwitnesses' credibility is entitled to great weight on appeal and will not be disturbed unlessclearly unsupported by the record (see Matter of Deepti v Kaushik, 126 AD3d 790 [2015]; Matter of Shiffman v Handler,115 AD3d 753 [2014]; Matter of Creighton v Whitmore, 71 AD3d 1141, 1141[2010]). Thus, where a hearing court "was presented with sharply conflicting accounts bythe parties regarding the subject events, and chose to credit the testimony" of one partyover that of the other, its determination will not be disturbed if it is supported by therecord (Matter of Musheyev vMusheyev, 126 AD3d 800, 801 [2015]; see Matter of Streat v Streat, 117 AD3d 837 [2014]; Matter of Krasnova v Krasnov,83 AD3d 940 [2011]).
Contrary to the appellant's contention, a fair preponderance of the credible evidencesupports the Family Court's determination that he committed the family offense ofharassment in the second degree (Penal Law § 240.26 [3]).
[*2] The appellant's remaining contention, that he wasdeprived of the ability to properly prepare for the hearing because two of the three pagesof the petition were not served on him or his counsel until the hearing was underway, hasbeen waived, as the father's counsel accepted service of the complete family offensepetition in open court and declined to request an adjournment to allow for furtherpreparations. Rivera, J.P., Hall, Cohen and Hinds-Radix, JJ., concur.