IN RE: Marsona B. DAVIS (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 8, respondent appeals from an order of protection issued after a fact-finding hearing and upon a related decision made after the hearing that found that he committed family offenses against petitioner. We affirm.

“A petitioner bears the burden of proving by a preponderance of the evidence that respondent committed a family offense” (Matter of Washington v. Davis, 207 A.D.3d 1078, 1079, 169 N.Y.S.3d 567 [4th Dept. 2022], lv denied 39 N.Y.3d 902, 2022 WL 11456463 [2022] [internal quotation marks omitted]; see Family Ct Act § 832). Here, we agree with respondent that Family Court did not specify the subsections of the criminal statutes upon which it based its findings that respondent had committed the family offenses of harassment in the second degree and disorderly conduct. However, upon exercising our independent review power (see Matter of Tara N. P.-T. v. Emma P.-T., 204 A.D.3d 1414, 1415, 166 N.Y.S.3d 776 [4th Dept. 2022]; Matter of Telles v. Dewind, 140 A.D.3d 1701, 1701, 34 N.Y.S.3d 299 [4th Dept. 2016]), we conclude, contrary to respondent's contention, that the record is sufficient to establish, by a preponderance of the evidence, that respondent committed the family offenses of harassment in the second degree under Penal Law § 240.26 (1) and disorderly conduct under section 240.20 (1) (see Tara N. P.-T., 204 A.D.3d at 1415, 166 N.Y.S.3d 776; Telles, 140 A.D.3d at 1701-1702, 34 N.Y.S.3d 299). The determination of whether a family offense was committed is a factual issue to be resolved by the court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed where, as here, it is supported by the record (see Washington, 207 A.D.3d at 1079, 169 N.Y.S.3d 567).