Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Second Department, New York.Sep 11, 2013
971 N.Y.S.2d 310 (N.Y. App. Div. 2013)
971 N.Y.S.2d 310109 A.D.3d 8312013 N.Y. Slip Op. 5826

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In the Matter of Cesar Alfonso SALDIVAR, appellant, v. Nikens CABRERA, respondent. (Proceeding No. 1) In the Matter of Nikens Cabrera, respondent, v. Cesar Alfonso Saldivar, appellant. (Proceeding No. 2).

Anne M. Serby, Rockaway Park, N.Y., for appellant. Karla A. Guerra, Hempstead, N.Y., for respondent.

Anne M. Serby, Rockaway Park, N.Y., for appellant. Karla A. Guerra, Hempstead, N.Y., for respondent.
Frank Bruno, Glendale, N.Y., attorney for the child.

In two related family offense proceedings pursuant to Family Court Act article 8, Cesar Alfonso Saldivar appeals from (1) an order of the Family Court, Queens County (Lebwohl, J.), dated March 20, 2012, which, after a hearing, dismissed his petition, and (2) an order of protection of the same court dated March 30, 2012, which, after a hearing, and upon a finding that he committed the family offenses of disorderly conduct and harassment in the second degree, directed him, inter alia, to refrain from harassing Nikens Cabrera.

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

Although the order of protection expired by its own terms on March 20, 2013, the appeal therefrom has not been rendered academic in light of the enduring consequences which may potentially flow from a finding that the appellant committed the subject family offenses ( see Matter of Hohn v. Guirand, 97 A.D.3d 578, 947 N.Y.S.2d 336;Matter of Scioscia v. Scioscia, 89 A.D.3d 739, 740, 931 N.Y.S.2d 892).

A family offense must be established by a fair preponderance of the evidence ( seeFamily Ct. Act § 832; 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, 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). Contrary to the appellant's contention, a fair preponderance of the credible evidence supports the Family Court's determination that he committed acts constituting the subject family offenses ( seeFamily Ct. Act § 812[1]; Penal Law §§ 240.20[1]; 240.26[1]; Matter of Cabeza v. Cabeza, 107 A.D.3d 793, 966 N.Y.S.2d 679;Matter of McCauley v. Galante, 106 A.D.3d 1089, 965 N.Y.S.2d 733;Matter of Kanterakis v. Kanterakis, 102 A.D.3d at 785, 957 N.Y.S.2d 890;Matter of Baginski v. Rostkowski, 96 A.D.3d 1051, 946 N.Y.S.2d 886;Matter of Miriam M. v. Warren M., 51 A.D.3d 581, 859 N.Y.S.2d 66).

Moreover, the Family Court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of the complainant, Nikens Cabrera ( see Matter of Amato v. Amato, 100 A.D.3d 988, 989, 954 N.Y.S.2d 464). We discern no basis to disturb the Family Court's determination to dismiss the appellant's family offense petition.

The appellant's remaining contention is not properly before this Court, as it raises an issue not determined by the orders appealed from ( see Matter of Padin v. Padin, 103 A.D.3d 729, 730, 962 N.Y.S.2d 165;Matter of Joseph A. [ Fausat O. ], 78 A.D.3d 826, 827, 910 N.Y.S.2d 657;Matter of Tishauna Patricia N. [ Tee Tee Ann W. ], 68 A.D.3d 1119, 1120, 890 N.Y.S.2d 346).