Henderson v. Henderson

Alan Henderson, Jr., Manorville, N.Y., appellant pro se. Opinion

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, also dated April 2, 2015. The order dated April 2, 2015, after a hearing, found that the appellant committed the family offense of harassment in the second degree. The order of protection, upon that finding, directed the appellant, inter alia, to refrain from communicating with the petitioner up to and including October 21, 2015.

ORDERED that the order dated April 2, 2015, is affirmed, without costs or disbursements; 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 own terms.

“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 alleged in the petition”

( Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537, quoting Family Ct. Act § 832; see Matter of Monos v. Monos, 123 A.D.3d 931, 999 N.Y.S.2d 131; Matter of Blackett v. Blackett, 123 A.D.3d 923, 999 N.Y.S.2d 148). Whether a family offense was committed is a factual issue resolved by the hearing court ( see Family Ct. Act §§ 812, 832; Matter of Blackett v. Blackett, 123 A.D.3d at 923, 999 N.Y.S.2d 148; Matter of Hodiantov v. Aronov, 110 A.D.3d 881, 882, 973 N.Y.S.2d 703; Matter of Kaur v. Singh, 73 A.D.3d 1178, 900 N.Y.S.2d 895), and the hearing court's determination regarding witnesses' credibility is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record ( see Matter of Deepti v. Kaushik, 126 A.D.3d 790, 5 N.Y.S.3d 299; Matter of Shiffman v. Handler, 115 A.D.3d 753, 981 N.Y.S.2d 790; Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 1141, 898 N.Y.S.2d 585). Thus, where a hearing court “was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony” of one party over that of the other, its determination will not be disturbed if it is supported by the record ( Matter of Musheyev v. Musheyev, 126 A.D.3d 800, 801, 2 N.Y.S.3d 807; see Matter of Streat v. Streat, 117 A.D.3d 837, 985 N.Y.S.2d 720; Matter of Krasnova v. Krasnov, 83 A.D.3d 940, 920 N.Y.S.2d 727).

Contrary to the appellant's contention, a fair preponderance of the credible evidence supports the Family Court's determination that he committed the family offense of harassment in the second degree (Penal Law § 240.26[3] ).

The appellant's remaining contention, that he was deprived of the ability to properly prepare for the hearing because two of the three pages of the petition were not served on him or his counsel until the hearing was underway, has been waived, as the father's counsel accepted service of the complete family offense petition in open court and declined to request an adjournment to allow for further preparations.