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In re Hodiantov

Supreme Court of New York, Second Department

October 16, 2013

In the Matter of Raisa Hodiantov, respondent,
v.
Yuriy Aronov, appellant. Docket No. O-4335-12

Christopher J. Robles, Brooklyn, N.Y., for appellant.

Jennifer Reddin-Eliou, Whitestone, N.Y., for respondent.

REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SANDRA L. SGROI, ROBERT J. MILLER, JJ.

DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, Yuriy Aronov appeals from an order of protection of the Family Court, Queens County (Jolly, J.), dated July 24, 2012, which, after a fact-finding and dispositional hearing, and upon a related fact-finding order, made after the hearing, finding that he committed certain family offenses, directed him, inter alia, to stay away from the petitioner for a period up to and including July 24, 2014.

ORDERED that upon the appeal from the order of protection, so much of the fact-finding order as found that Yuriy Aronov committed the family offense of disorderly conduct is vacated; and it is further,

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

"A family offense must be established by a fair preponderance of the evidence" (Matter of Thomas v Thomas, 72 A.D.3d 834, 835; see Family Ct Act § 832). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court" (Matter of Kanterakis v Kanterakis, 102 A.D.3d 784, 785 [internal quotation marks omitted]). "The Family 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" (id.; see Matter of Cruz v Rodriguez, 96 A.D.3d 838; Matter of Lamparillo v Lamparillo, 84 A.D.3d 1381).

Here, a fair preponderance of the credible evidence adduced at the fact-finding hearing supported a finding that the appellant committed the family offense of harassment in the second degree (see Penal Law § 240.26[1]; Matter of Scanziani v Hairston, 100 A.D.3d 1007, 1008; Matter of Sperling v Sperling, 96 A.D.3d 1067), as well as the family offense of menacing in the third degree (see Penal Law § 120.15; Matter of Baginski v Rostkowski, 96 A.D.3d 1051; Matter of Sinclair v Batista-Mall, 50 A.D.3d 1044). However, there was insufficient evidence that the appellant committed the family offense of disorderly conduct (see Penal Law § 240.20; Cassie v Cassie, __ A.D.3d __, 2013 NY Slip Op 05446 [2d Dept 2013]; Matter of Aruti v Aruti, 88 A.D.3d 700, 701; Matter of Hasbrouck v Hasbrouck, 59 A.D.3d 621, 622; Matter of Bartley v Bartley, 48 A.D.3d 678, 678-679).

Although we have concluded that the finding that the appellant committed the family offense of disorderly conduct must be vacated, nevertheless, under all of the circumstances of this case, we find no basis to disturb the order of protection (see Matter of Maiorino v Maiorino, 107 A.D.3d 717; Matter of Jackson v Idlett, 103 A.D.3d 723).

RIVERA, J.P., LOTT, SGROI and MILLER, JJ., concur.


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