IN RE: Jalisa JAMES (2026)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Monica D. Shulman, J.), dated February 21, 2025.  The order, after a hearing, in effect, denied the petition and dismissed the proceeding.

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

The petitioner and the respondent have one child in common.  In June 2024, the petitioner commenced this family offense proceeding against the respondent, alleging that he had committed, inter alia, various family offenses against her, including harassment in the second degree, and seeking an order of protection.  Following a hearing, the Family Court determined that the credible evidence failed to support a finding that a family offense was committed, and, in effect, denied the petition and dismissed the proceeding.  The petitioner appeals, asserting that the credible evidence established that the father committed the family offense of harassment in the second degree.

“ ‘In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence’ ” (Matter of Martinez v. Toole, 239 A.D.3d 855, 857, 234 N.Y.S.3d 284, quoting Matter of Davis v. Wright, 140 A.D.3d 753, 754, 30 N.Y.S.3d 923).  “ ‘The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that 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’ ” (Matter of Levay v. Gurrera, 236 A.D.3d 1032, 1033, 230 N.Y.S.3d 625, quoting Matter of Mitchell–George v. George, 234 A.D.3d 969, 969, 227 N.Y.S.3d 162).

Contrary to the petitioner's contention, the Family Court did not err in finding that the credible evidence failed to establish that the respondent committed the family offense of harassment in the second degree (Penal Law § 240.26).  “A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person[,][h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” (id.).  Contrary to the petitioner's contention, a threatening statement must be a “true threat” of intended physical harm in order to establish the family offense of harassment in the second degree pursuant to Penal Law § 240.26(1) (People v. Lagano, 39 N.Y.3d 108, 112, 181 N.Y.S.3d 174, 201 N.E.3d 791 [internal quotation marks omitted]).  The petitioner also failed to show that the respondent's conduct during an incident in 2009 was committed with the requisite intent “to harass, annoy or alarm” the petitioner (Matter of Etman v. Adjoor, 144 A.D.3d 678, 679, 40 N.Y.S.3d 472;  see Penal Law § 240.26[1]).  Therefore, the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent committed the family offense of harassment in the second degree (see Matter of Butler–Moore v. Butler, 149 A.D.3d 1070, 1071, 50 N.Y.S.3d 887;  Matter of Johnson v. Johnson, 146 A.D.3d 954, 955, 45 N.Y.S.3d 551;  Matter of Davis v. Wright, 140 A.D.3d at 754, 30 N.Y.S.3d 923).  Accordingly, we affirm.

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.