Masciello v. Masciello

130 A.D.3d 626

12 N.Y.S.3d 299

2015 N.Y. Slip Op. 05681

In the Matter of Michelle MASCIELLO, respondent

v.Michael A. MASCIELLO III, appellant.

2014-05369

Supreme Court, Appellate Division, Second Department, New York.

July 1, 2015.

Kevin J. Fitzgerald, P.C., Smithtown, N.Y., for appellant.

The Sallah Law Firm, P.C., Holtsville, N.Y. (Dean J. Sallah of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.

Opinion

Appeal from an undated order of protection of the Supreme Court, Suffolk County (John Iliou, J.), issued May 15, 2014. The order of protection, after a hearing, inter alia, directed Michael A. Masciello III to stay away from the petitioner until and including May 15, 2017.

ORDERED that the order of protection is modified, on the law and the facts, by deleting the provision thereof directing that the order of protection shall remain in effect until and including May 15, 2017, and substituting therefor a provision directing that the order of protection shall remain in effect until and including May 15, 2016; as so modified, 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 A.D.3d 831, 831, 971 N.Y.S.2d 310 ; Matter of Bazante v. Bazante, 107 A.D.3d 707, 707, 966 N.Y.S.2d 483 ). The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Saldivar v. Cabrera, 109 A.D.3d at 832, 971 N.Y.S.2d 310 ; Matter of Winfield v. Gammons, 105 A.D.3d 753, 754, 963 N.Y.S.2d 272 ).

Here, although the Supreme Court made certain credibility findings, it failed to state the facts that it deemed essential to its determination to issue the order of protection. Remittal is nevertheless unnecessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Son v. Ramos, 117 A.D.3d 745, 746, 984 N.Y.S.2d 612 ; Matter of Panico v. Panico, 100 A.D.3d 907, 908, 955 N.Y.S.2d 125 ; Matter of Sperling v. Sperling, 96 A.D.3d 1067, 1067, 946 N.Y.S.2d 877 ). Upon our review, we conclude that a fair preponderance of the evidence adduced at the hearing established that the appellant committed the family offense of harassment in the second degree (see Family Ct. Act § 832 ; Penal Law § 240.26 [1 ]; see generally Matter of

Xin Li v. Ramos, 125 A.D.3d 681, 3 N.Y.S.3d 86 ; Matter of Rousseau v. Palazzo, 124 A.D.3d 901, 998 N.Y.S.2d 908 ; Matter of Messana v. Messana, 115 A.D.3d 860, 982 N.Y.S.2d 346 ). Moreover, the order of protection, which, inter alia, directed the appellant to stay away from the petitioner, was reasonably necessary to enable the petitioner to have meaningful protection (see Matter of Silva v. Silva, 125 A.D.3d 869, 870, 1 N.Y.S.3d 848 ; Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 633, 975 N.Y.S.2d 894 ).

Contrary to the appellant's contention, under the circumstances of this case, the Supreme Court's decision not to hold a dispositional hearing prior to issuing the order of protection does not require reversal (see Matter of Campbell v. Campbell, 123 A.D.3d 1123, 1 N.Y.S.3d 219 ; Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 975 N.Y.S.2d 894 ).

The Supreme Court, however, failed to set forth any finding of aggravating circumstances “on the record and upon the order of protection,” as is required to issue an order of protection with a duration exceeding two years (Family Ct. Act § 842 ), and insufficient evidence was presented at the hearing to support any finding of aggravating circumstances (see Family Ct. Act § 827[a][vii] ; Matter of Del Canto v. Behrens, 95 A.D.3d 1211, 945 N.Y.S.2d 148 ; Matter of Drury v. Drury, 90 A.D.3d 754, 755, 934...