IN RE: Feng Xia WANG (2026)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, Yong Zhao appeals from (1) an order of fact-finding of the Family Court, Queens County (Tosha Y. Foster, Ct. Atty. Ref.), dated March 17, 2025, and (2) an order of fact-finding and disposition of the same court dated July 31, 2025.  The order of fact-finding, after a hearing, found that Yong Zhao committed the family offenses of harassment in the second degree, menacing in the third degree, assault in the third degree, and attempted assault in the third degree.  The order of fact-finding and disposition, inter alia, directed Yong Zhao to comply with the terms set forth in an order of protection.

ORDERED that the appeal from the order of fact-finding is dismissed, without costs or disbursements, as the order of fact-finding was superseded by the order of fact-finding and disposition and is brought up for review on the appeal from the order of fact-finding and disposition;  and it is further,

ORDERED that the order of fact-finding and disposition is modified, on the law and the facts, by deleting the provision thereof finding that Yong Zhao committed the family offense of attempted assault in the third degree;  as so modified, the order of fact-finding and disposition is affirmed, without costs or disbursements, and the order of fact-finding is modified accordingly.

In December 2023, the petitioner commenced this proceeding pursuant to Family Court Act article 8 against her husband, the appellant.  After a hearing, the Family Court found that the appellant committed the family offenses of harassment in the second degree, menacing in the third degree, assault in the third degree, and attempted assault in the third degree, and directed the appellant to comply with the terms of an order of protection.

Initially, contrary to the petitioner's contention, the appeal should not be dismissed as untimely taken.  We note that the petitioner did not move to dismiss the appeal on this ground, and there is no evidence in the record that the appellant was served with the orders appealed from by a party, that he received the orders in court, or that the Family Court mailed the orders to him (see Family Ct Act § 1113).  Accordingly, it cannot be determined on the record before this Court whether the appellant filed his notice of appeal within the required time period (see id.;  Matter of Glantz v. Kadoch, 248 AD3d 1115;  Matter of Mark M.L. [Shantia B.], 210 AD3d 1093, 1094).

In a family offense proceeding, the burden is on the petitioner to establish the offense by a fair preponderance of the evidence (see Matter of Latiff v. Bacchus, 236 AD3d 1030, 1030;  Matter of Wiley v. Wiley, 231 AD3d 841, 842).  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 (see Matter of Mitchell–George v George, 234 AD3d 969, 969).  Where, as here, the hearing court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination will not be disturbed unless clearly unsupported by the record (see Matter of Witt v. Naprawa, 237 AD3d 1207, 1208;  Matter of Townes v. Diggs, 216 AD3d 1104, 1105).

Here, the Family Court's determination was based upon its credibility assessments and is supported by the record (see Matter of Wiley v. Wiley, 231 AD3d at 842;  Matter of Mohammed v. Mohammed, 174 AD3d 615, 616).  Accordingly, there is no basis to disturb the court's determination that the petitioner established by a fair preponderance of the evidence that the appellant committed the family offenses of harassment in the second degree (Penal Law § 240.26), menacing in the third degree (id. § 120.15), and assault in the third degree (id. § 120.00[1] ).

However, under the circumstances here, the Family Court, upon finding that the appellant committed the family offense of assault in the third degree, should not have found that he committed the lesser included offense of attempted assault in the third degree (id. §§ 110.00, 120.00[1];  see People v. Vining, 126 AD3d 623, 624, affd 28 NY3d 686).  The order of protection was nevertheless warranted based upon the court's findings with respect to the other family offenses (see Matter of Hefley v. Luck, 179 AD3d 797, 798).

BARROS, J.P., FORD, MCCORMACK and OTTLEY, JJ., concur.