Washington v. Washington

158 A.D.3d 717

70 N.Y.S.3d 560

In the Matter of Tasheema N. WASHINGTON, respondent,

v.Dante D. WASHINGTON, appellant.

2017–04311

Docket No. O–1247–17

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

Submitted—January 26, 2018

February 14, 2018

Mark Diamond, New York, NY, for appellant.

Tennille M. Tatum–Evans, New York, NY, for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

Appeal from an order of protection of the Family Court, Kings County (Javier E. Vargas, J.), dated February 21, 2017. The order of protection, upon a finding that the appellant committed the family offense of harassment in the second degree, made after a fact-finding hearing, directed the appellant, among other things, to stay away from the petitioner until and including February 20, 2018.

ORDERED that the order of protection is affirmed, without costs or disbursements.

The petitioner and the appellant were married in 2009. In January 2017, the petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the appellant, alleging, inter alia, that on two specific occasions, he engaged in threatening conduct and used abusive and intimidating language directed at her. The appellant denied the allegations. Following a fact-finding hearing, the Family Court found that the appellant committed the family offense of harassment in the second degree, and issued an order of protection directing the appellant, among other things, to stay away from the petitioner until and including February 20, 2018.

A family offense must be established by a fair preponderance of the evidence (see Family Ct Act § 832 ; M.B. v. L.T., 152 A.D.3d 475, 476, 58 N.Y.S.3d 491 ; Matter of Campbell v. Campbell, 123 A.D.3d 1123, 1124, 1 N.Y.S.3d 219 ; Matter of Maiorino v. Maiorino, 107 A.D.3d 717, 717, 965 N.Y.S.2d 885 ). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court (see Matter of Pierre v. Dal, 142 A.D.3d 1021, 1023, 37 N.Y.S.3d 317 ; Matter of Maiorino v. Maiorino, 107 A.D.3d at 717, 965 N.Y.S.2d 885 ; Matter of Kanterakis v. Kanterakis, 102 A.D.3d 784, 785, 957 N.Y.S.2d 890 ). The court's determination regarding the credibility of witnesses is entitled to great weight on appeal, and will not be disturbed if supported by the record (see Matter of Pierre v. Dal, 142 A.D.3d at 1023, 37 N.Y.S.3d 317; Matter of Maiorino v. Maiorino, 107 A.D.3d at 717, 965 N.Y.S.2d 885 ).

Contrary to the appellant's contentions, the petitioner established, by a fair preponderance of the evidence, that the appellant committed the family offense of harassment in the second degree (see Penal Law § 240.26[1], [3] ; Family Ct Act § 812[1] ; Rosenstock v. Rosenstock, 149 A.D.3d 887, 889, 51 N.Y.S.3d 593 ; Matter of Sommella v. Kimble, 150 A.D.3d 1018, 1019, 55 N.Y.S.3d 147 ; Matter of Salazar v. Melendez, 97 A.D.3d 754, 755, 948 N.Y.S.2d 673 ; Matter of Dell'Isola v. Dell'Isola, 19 A.D.3d 488, 489, 796 N.Y.S.2d 242 ). The intent to commit harassment in the second degree is properly inferred from the appellant's threatening conduct and his abusive and intimidating language directed at the petitioner on December 20, 2016, and January 13, 2017, which frightened the petitioner and served no legitimate purpose (see M.B. v. L.T., 152 A.D.3d at 476, 58 N.Y.S.3d 491 ; Rosenstock v. Rosenstock, 149 A.D.3d at 889, 51 N.Y.S.3d 593 ; Matter of Polizzi v. McCrea, 129 A.D.3d 733, 734, 10 N.Y.S.3d 568 ; Matter of Messana v. Messana, 115 A.D.3d 860, 861, 982 N.Y.S.2d 346 ; Matter of Salazar v. Melendez, 97 A.D.3d at 755, 948 N.Y.S.2d 673 ). The Family Court's credibility determinations are supported by the record (see Matter of Molina v. Hart, ...