| Matter of Jordan v Verni |
| 2016 NY Slip Op 04056 [139 AD3d 1067] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Kathleen P. Jordan,Respondent, v Michael F. Verni, Appellant. |
Barbara J. Caravello, Jamaica, NY, for appellant.
Appeal from an order of protection of the Family Court, Queens County (DennisLebwohl, J.), dated January 23, 2015. The order of protection, upon a finding that theappellant committed the family offenses of harassment in the second degree and stalkingin the fourth degree, made after a hearing, directed the appellant, among other things, tostay away from the petitioner until and including January 22, 2017.
Ordered that upon the appeal from the order of protection, so much of the finding asfound that the appellant committed the family offense of stalking in the fourth degree isvacated; and it is further,
Ordered that the order of protection is affirmed, without costs or disbursements.
In a family offense proceeding, the allegations must be "supported by a fairpreponderance of the evidence" (Family Ct Act § 832; see Matter of Kiani v Kiani,134 AD3d 1036, 1037 [2015]; Matter of Tulshi v Tulshi, 118 AD3d 716, 716 [2014]; Matter of Zina L. v Eldred L.,113 AD3d 852, 853 [2014]). "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" (Matter of Jackson v Idlett, 103 AD3d 723, 723 [2013];see Matter of Tulshi, 118 AD3d at 716; Matter of Zina L. v Eldred L.,113 AD3d at 853).
Here, the testimony proffered at the fact-finding hearing established, by a fairpreponderance of the evidence, that the appellant committed acts which constituted thefamily offense of harassment in the second degree (see Penal Law§ 240.26 [3]; Matter of Pochat v Pochat, 125 AD3d 660, 661 [2015];Matter of Jackson v Idlett, 103 AD3d at 723; Matter of Gray v Gray, 55 AD3d 909, 910 [2008]).However, there was insufficient evidence to establish, by a preponderance of theevidence, the necessary elements of the family offense of stalking in the fourth degree(see Penal Law § 120.45 [3]; Matter of London v Blazer, 2 AD3d 860, 861 [2003]) and,therefore, we exercise our factual review power to vacate this finding. Nevertheless,under the particular circumstances of this case, the duration of the order of protectionshould remain the same (see e.g.Matter of Pochat v Pochat, 125 AD3d 660 [2015]; Matter of Jackson vIdlett, 103 AD3d at 724).
[*2] Theappellant's remaining contentions are without merit. Balkin, J.P., Leventhal, Austin andDuffy, JJ., concur.