Opinion
01-25-2017
In the Matter of Gary JOHNSON, appellant, v. Everette JOHNSON, respondent.
Linda C. Braunsberg, Staten Island, NY, for appellant. Olga J. Rodriguez, Forest Hills, NY, for respondent.
Linda C. Braunsberg, Staten Island, NY, for appellant.
Olga J. Rodriguez, Forest Hills, NY, for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
Appeal by the petitioner from an order of the Family Court, Queens County (Anne–Marie Jolly, J.), dated October 5, 2015. The order, after a hearing, in effect, denied the petitioner's family offense petition and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner commenced this proceeding pursuant to Family Court Act article 8 alleging that the respondent, his brother, committed various family offenses against him. After a hearing, the Family Court, in effect, denied the petition and dismissed the proceeding. The allegations in a family offense proceeding must be " supported by a fair preponderance of the evidence" (Family Ct. Act § 832 ; see Matter of Davis v. Wright, 140 A.D.3d 753, 754, 30 N.Y.S.3d 923 ; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d 752, 752, 7 N.Y.S.3d 222 ; Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 716, 986 N.Y.S.2d 350 ; Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537 ). "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 and will not be disturbed if supported by the record" (Matter of Richardson v. Richardson, 80 A.D.3d 32, 43–44, 910 N.Y.S.2d 149 ; see Matter of Davis v. Wright, 140 A.D.3d at 754, 30 N.Y.S.3d 923; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d at 752, 7 N.Y.S.3d 222 ; Matter of Tulshi v. Tulshi, 118 A.D.3d at 716, 986 N.Y.S.2d 350 ; Matter of Bah v. Bah, 112 A.D.3d 921, 922, 978 N.Y.S.2d 301 ).
Here, the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent committed a family offense (see Matter of Graham v. Rawley, 140 A.D.3d 765, 767–768, 33 N.Y.S.3d 371 ; Matter of Davis v. Wright, 140 A.D.3d at 754, 30 N.Y.S.3d 923; Matter of Bah v. Bah, 112 A.D.3d at 922, 978 N.Y.S.2d 301 ; Matter of Richardson v. Richardson, 80 A.D.3d at 44, 910 N.Y.S.2d 149 ). The Family Court's credibility determination is supported by the record, and we discern no basis for disturbing it (see Matter of Davis v. Wright, 140 A.D.3d at 754, 30 N.Y.S.3d 923; Matter of Giresi–Palazzolo v. Palazzolo, 127 A.D.3d at 752, 7 N.Y.S.3d 222 ; Matter of Tulshi v. Tulshi, 118 A.D.3d at 716, 986 N.Y.S.2d 350 ; Matter of Bah v. Bah, 112 A.D.3d at 922, 978 N.Y.S.2d 301 ; Matter of Richardson v. Richardson, 80 A.D.3d at 44, 910 N.Y.S.2d 149 ).
Contrary to the petitioner's contention, during the hearing, the Family Court properly ruled that certain hearsay statements were not admissible under the excited utterance exception to the hearsay rule (see People v. Cantave, 21 N.Y.3d 374, 381–382, 971 N.Y.S.2d 237, 993 N.E.2d 1257 ; People v. Johnson, 1 N.Y.3d 302, 306–307, 772 N.Y.S.2d 238, 804 N.E.2d 402 ; People v. Leach, 137 A.D.3d 1300, 1301, 30 N.Y.S.3d 117 ; People v. Porco, 71 A.D.3d 791, 792, 896 N.Y.S.2d 161, affd. 17 N.Y.3d 877, 934 N.Y.S.2d 360, 958 N.E.2d 538 ). The court also properly declined to admit into evidence hospital records that were not certified or authenticated (see CPLR 4518 ; Matter of Pepe v. Pepe, 128 A.D.3d 831, 834, 9 N.Y.S.3d 161 ; Matter of Bronstein–Becher v. Becher, 25 A.D.3d 796, 797, 809 N.Y.S.2d 140 ; Matter of Damon J., 144 A.D.2d 467, 534 N.Y.S.2d 23 ).
The petitioner's remaining contentions are either unpreserved for appellate review or without merit.
Accordingly, the Family Court properly, in effect, denied the petitioner's family offense petition and dismissed the proceeding.