IN RE: Carol GRAY

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Carol GRAY, respondent, v. Gerard P. GRAY, appellant.

Decided: October 28, 2008

ANITA R. FLORIO, J.P., DANIEL D. ANGIOLILLO, WILLIAM E. McCARTHY, and CHERYL E. CHAMBERS, JJ. Samuel Weinbaum, Brooklyn, N.Y., for appellant.

In a family offense proceeding pursuant to Family Court Act article 8, Gerard P. Gray appeals from an order of protection of the Supreme Court, Kings County (Morgenstern, J.), dated January 16, 2008, which, after a hearing, inter alia, directed him to stay away from the petitioner until January 15, 2013.

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

 The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court (see Matter of Hall v. Hall, 45 A.D.3d 842, 845 N.Y.S.2d 745;  Matter of Pastore v. Russo, 38 A.D.3d 556, 832 N.Y.S.2d 577), and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Hall v. Hall, 45 A.D.3d 842, 845 N.Y.S.2d 745;  Matter of Wallace v. Wallace, 45 A.D.3d 599, 844 N.Y.S.2d 711;  Matter of Dancer v. Robertson, 38 A.D.3d 887, 831 N.Y.S.2d 333;  Matter of Meiling Zhang v. Jinghong Zhu, 36 A.D.3d 704, 826 N.Y.S.2d 581;  Matter of Kraus v. Kraus, 26 A.D.3d 494, 809 N.Y.S.2d 471).   A fair preponderance of the credible evidence did not support the hearing court's determination that the appellant committed the family offense of assault in the third degree (see Family Ct. Act § 812[1];  § 832;  Penal Law § 120.00;   Matter of Ford v. Pitts, 30 A.D.3d 419, 817 N.Y.S.2d 332;  Matter of Strully v. Schwartz, 255 A.D.2d 593, 680 N.Y.S.2d 871).   However, a fair preponderance of the credible evidence adduced at the fact-finding hearing supports the hearing court's finding that the appellant committed the family offenses of harassment in the second degree (see Penal Law § 240.26 [3];  Matter of Fleming v. Fleming, 52 A.D.3d 600, 859 N.Y.S.2d 739;  Matter of Larson v. Gilliam, 49 A.D.3d 650, 852 N.Y.S.2d 808;  Matter of Wallace v. Wallace, 45 A.D.3d 599, 844 N.Y.S.2d 711), attempted assault in the third degree (see Penal Law §§ 110.00, 120.00;  Matter of Wright v. Wright, 4 A.D.3d 683, 684, 772 N.Y.S.2d 740), menacing in the second degree (see Penal Law § 120.14 [2];  Matter of Onuoha v. Onuoha, 28 A.D.3d 563, 813 N.Y.S.2d 506), and menacing in the third degree (see Penal Law § 120.15;   Matter of Sinclair v. Batista-Mall, 50 A.D.3d 1044, 854 N.Y.S.2d 906;  Matter of Mazzola v. Mazzola, 280 A.D.2d 674, 720 N.Y.S.2d 838), warranting the issuance of an order of protection.

The appellant's remaining contentions are either unpreserved for appellate review or not properly before this Court.

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