IN RE: Lisa Estelle WILEY (2024)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, Johnny Warren Wiley, Sr., appeals from an order of protection of the Family Court, Nassau County (Joy M. Watson, J.), dated September 11, 2023.  The order of protection, after a hearing, and upon a finding that Johnny Warren Wiley, Sr., committed the family offense of harassment in the second degree, directed him, inter alia, to stay away from the petitioner until and including September 10, 2024.

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

The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the appellant, who is her husband.  Following a hearing, the Family Court found that the appellant committed the family offense of harassment in the second degree.  The court issued an order of protection directing the appellant, inter alia, to stay away from the petitioner until and including September 10, 2024.

Although the order of protection has expired by its own terms, the appeal from that order has not been rendered academic in light of the enduring consequences which may flow from a finding that the appellant committed a family offense (see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 673, 3 N.Y.S.3d 288, 26 N.E.3d 1143;  Matter of Cook v. Berehowsky, 211 A.D.3d 727, 728, 179 N.Y.S.3d 721).

“In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence” (Matter of Lederman v. Lederman, 208 A.D.3d 483, 484, 171 N.Y.S.3d 366 [internal quotation marks omitted];  see Family Ct Act § 832).  “The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court” (Matter of Lederman v. Lederman, 208 A.D.3d at 484, 171 N.Y.S.3d 366 [internal quotation marks omitted]).  “ ‘The Family Court's determination as to the credibility of witnesses is entitled to great weight and, if supported by the record, will not be disturbed on appeal’ ” (id., quoting Matter of Mansour v. Mahgoub, 202 A.D.3d 961, 962, 162 N.Y.S.3d 475).  In reviewing a determination made after a nonjury trial or hearing, the power of the Appellate Division is as broad as that of the trial or hearing court, and it may render the judgment that it finds warranted by the facts, taking into account in a close case that the trial or hearing judge had the advantage of seeing and hearing the witnesses (see id.).

Here, a fair preponderance of the evidence adduced at the hearing established that the appellant committed the family offense of harassment in the second degree (Penal Law § 240.26[1]), warranting the issuance of an order of protection (see Matter of Yurewich v. Read, 209 A.D.3d 747, 748, 174 N.Y.S.3d 883).  The Family Court was presented with sharply conflicting accounts by the parties regarding the subject incident, and its determination to credit the petitioner's testimony over the appellant's testimony is supported by the record (see Matter of Townes v. Diggs, 216 A.D.3d 1104, 1105, 189 N.Y.S.3d 285;  Matter of Mohammed v. Mohammed, 174 A.D.3d 615, 615–616, 101 N.Y.S.3d 884).  Moreover, the single incident is sufficient to support a finding that the appellant committed harassment in the second degree (see Matter of Polizzi v. McCrea, 129 A.D.3d 733, 734, 10 N.Y.S.3d 568).

LASALLE, P.J., IANNACCI, FORD and VOUTSINAS, JJ., concur.