In the Matter of Gray
| Decision Date | 28 October 2008 |
| Docket Number | 2008-00913 |
| Citation | 867 N.Y.S.2d 110,2008 NY Slip Op 08324,55 A.D.3d 909 |
| Parties | In the Matter of CAROL GRAY, Respondent, v. GERARD P. GRAY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order of protection is affirmed, without costs or disbursements.
The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court (see Matter of Hall v Hall, 45 AD3d 842 [2007]; Matter of Pastore v Russo, 38 AD3d 556 [2007]), 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 Hall v Hall, 45 AD3d 842 [2007]; Matter of Wallace v Wallace, 45 AD3d 599 [2007]; Matter of Dancer v Robertson, 38 AD3d 887 [2007]; Matter of Meiling Zhang v Jinghong Zhu, 36 AD3d 704 [2007]; Matter of Kraus v Kraus, 26 AD3d 494 [2006]). A fair preponderance of the credible evidence did not support the hearing court's determination that the appellant committed the family offense of assault in the third degree (see Family Ct Act § 812 [1]; § 832; Penal Law § 120.00; Matter of Ford v Pitts, 30 AD3d 419 [2006]; Matter of Strully v Schwartz, 255 AD2d 593 [1998]). However, a fair preponderance of the credible evidence adduced at the fact-finding hearing supports the hearing court's finding that the appellant committed the family offenses of harassment in the second degree (see Penal Law § 240.26 [3]; Matter of Fleming v Fleming, 52 AD3d 600 [2008]; Matter of Larson v Gilliam, 49 AD3d 650 [2008]; Matter of Wallace v Wallace, 45 AD3d 599 [2007]), attempted assault in the third degree (see Penal Law §§ 110.00, 120.00; Matter of Wright v Wright, 4 AD3d 683, 684 [2004]), menacing in the second degree (see Penal Law § 120.14 [2]; Matter of Onuoha v Onuoha, 28 AD3d 563 [2006]), and menacing in the third degree (see Penal Law § 120.15; Matter of Sinclair v Batista-Mall, 50 AD3d 1044 [2008]; Matter of Mazzola v Mazzola, 280 AD2d 674 [2001]), warranting the issuance of an order of protection.
The appellant's remaining contentions are either unpreserved for appellate review or not properly before this Court.
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