Messana v. Messana

115 A.D.3d 860

982 N.Y.S.2d 346

2014 N.Y. Slip Op. 01754

In the Matter of Michael MESSANA, respondent,

v.Jennifer MESSANA, appellant.

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

March 19, 2014.

OPINION TEXT STARTS HEREArza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.

In a family offense proceeding pursuant to Family Court Act article 8, Jennifer Messana 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, and upon 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 two years.

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 ( seeFamily Ct. Act § 832; Matter of Saldivar v. Cabrera, 109 A.D.3d 831, 971 N.Y.S.2d 310;Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793;Matter of Bazante v. Bazante, 107 A.D.3d 707, 966 N.Y.S.2d 483;Matter of Salazar v. Melendez, 97 A.D.3d 754, 755, 948 N.Y.S.2d 673). The determination of whether a family offense was committed is a factual issue to be resolved by the Family 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 Winfield v. Gammons, 105 A.D.3d 753, 754, 963 N.Y.S.2d 272;Matter of Jackson v. Idlett, 103 A.D.3d 723, 959 N.Y.S.2d 706;Matter of Kanterakis v. Kanterakis, 102 A.D.3d 784, 785, 957 N.Y.S.2d 890).

Here, contrary to the appellant's contention, a fair preponderance of the credible evidence supports the Family Court's determination that she committed acts constituting the family offense of harassment in the second degree, warranting the issuance of an order of protection ( seeFamily Ct. Act § 812 [1]; Penal Law § 240.26[1]; Matter of Saldivar v. Cabrera, 109 A.D.3d at 832, 971 N.Y.S.2d 310;Matter of Parameswar v. Parameswar, 109 A.D.3d at 474, 970 N.Y.S.2d 793;Matter of Bazante v. Bazante, 107 A.D.3d at 707–708, 966 N.Y.S.2d 483). Contrary to the appellant's contention, the intent to commit harassment in the second degree is properly inferred from her conduct and the surroundingcircumstances ( see People v. Bueno, 18 N.Y.3d 160, 169, 936 N.Y.S.2d 636, 960 N.E.2d 405;People v. Smith, 79 N.Y.2d 309, 315, 582 N.Y.S.2d 946, 591 N.E.2d 1132;People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094;People v. Mollaie, 81 A.D.3d 1448, 1449, 916 N.Y.S.2d 726;Lynn v. State of New York, 33 A.D.3d 673, 674, 822 N.Y.S.2d 600;Matter of Reiss v. Reiss, 221 A.D.2d 280, 635 N.Y.S.2d 467;cf. People...