In the Matter of Sandy Harry v. Harry

• Decision Date: 07 June 2011
• Parties: In the Matter of Sandy HARRY, respondent,v.Bernard HARRY, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 790

924 N.Y.S.2d 816

2011 N.Y. Slip Op. 05067

In the Matter of Sandy HARRY, respondent,

v.Bernard HARRY, appellant.

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

June 7, 2011.

OPINION TEXT STARTS HERETennille M. Tatum–Evans, New York, N.Y., for appellant.Cynthia Domingo–Foraste, Brooklyn, N.Y., for respondent.

In a family offense proceeding pursuant to Family Court Act article 8, Bernard Harry appeals from an order of protection of the Family Court, Kings County (Feldman, J.H.O.), dated June 22, 2010, which, after a hearing, and, in effect, upon a finding that he had committed certain family offenses, directed him, inter alia, to stay away from the petitioner until and including June 21, 2015.

ORDERED that the order of protection is modified, on the law and the facts, by adding to the final decretal paragraph thereof, after the words “this Order of Protection shall remain in force until and including June 21, 2015,” the following: “aggravating circumstances exist, including violent and harassing behavior by Bernard Harry in the presence of Sandy Harry which constitutes an immediate and ongoing danger to her”; as so modified, 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” ( Matter of Kaur v. Singh, 73 A.D.3d 1178, 1178, 900 N.Y.S.2d 895 [internal quotation marks omitted]; see Family Ct. Act §§ 812, 832; Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 898 N.Y.S.2d 585; Matter of Halper v. Halper, 61 A.D.3d 687, 875 N.Y.S.2d 916), “whose determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” ( Matter of Kaur v. Singh, 73 A.D.3d at 1178, 900 N.Y.S.2d 895 [internal quotation marks omitted]; see Matter of Creighton v. Whitmore, 71 A.D.3d at 1141, 898 N.Y.S.2d 585; Matter of Robbins v. Robbins, 48 A.D.3d 822, 851 N.Y.S.2d 877). Here, a fair preponderance of the credible evidence supports a determination that Bernard Harry committed acts constituting certain family offenses, warranting the issuance of an order of protection ( see Family Ct. Act § 812; Penal Law §§ 120.14, 240.20, 240.26; Matter of Yalvac v. Yalvac, 83 A.D.3d 853, 920 N.Y.S.2d 689; Matter of Pearlman v. Pearlman, 78 A.D.3d 711, 911 N.Y.S.2d 87; Matter of Greener v. Greener, 77 A.D.3d 664, 908 N.Y.S.2d 450).

The Family Court provided for an extended period of protection without setting forth any aggravating circumstances as required by Family Court Act § 842. Nonetheless, the record reveals that aggravating circumstances exist as Bernard, in threatening Sandy with knives, exhibited violent and harassing behavior in the presence of Sandy which constitutes an immediate and ongoing danger to her ( see Family Ct. Act § 827[a][vii] ). Accordingly,...