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

IN RE: Marla WILSON, Respondent, v. Robert WILSON, Appellant.


Decided: February 28, 2019

Before:  Egan Jr., J.P., Clark, Mulvey, Devine and Rumsey, JJ. Renee J. Albaugh, Hamden, for appellant. Michael J. Mucci II, Binghamton, for respondent.


The parties are married and resided together until February 2017, when petitioner told respondent to leave the marital residence due to his drug use.  Petitioner filed for divorce and commenced this family offense proceeding soon after, alleging that respondent committed acts from November 2016 through February 2017 that constituted various family offenses (see Family Ct. Act § 812[1] ).  Family Court issued a series of temporary orders of protection on behalf of petitioner.  Following a hearing, Family Court determined that respondent had committed the alleged family offenses and issued a two-year order of protection in petitioner's favor.  Respondent now appeals.

It was incumbent upon petitioner, as the party seeking an order of protection, to show by a preponderance of the evidence that respondent committed one or more family offenses (see Family Ct. Act § 832;  Matter of Kevin F. v. Betty E., 154 A.D.3d 1118, 1122, 62 N.Y.S.3d 598 [2017];  Matter of David ZZ. v. Michael ZZ., 151 A.D.3d 1339, 1340, 56 N.Y.S.3d 660 [2017] ).  Petitioner testified that respondent's crystal methamphetamine habit and related issues caused marital disputes that escalated over the fall of 2016.  Respondent referred to petitioner in vulgar terms during these disputes and, in two of them, grabbed her and pinned her in place while demanding that she listen to him.  Petitioner stated that, in a particularly heated altercation on Christmas Eve 2016, respondent pushed her onto a bed, clambered on top of her and punched a hole in the wall after she kicked him away.  She also explained why she commenced this proceeding after respondent left the marital residence in February 2017, recounting an upsetting late-night encounter in which he returned home to retrieve some clothing and angrily confronted her.  Respondent failed to dispute much of this and, in fact, testified that he had physically restrained petitioner and punched a wall in the course of their arguments.  Family Court implicitly found that respondent harbored an intent to annoy, harass or alarm when he did so and, deferring to that credibility assessment, we agree with it that petitioner sufficiently showed respondent to have committed, at the very least, the family offense of harassment in the second degree (see Family Ct. Act § 812[1];  Penal Law § 240.26[1], [3];  Matter of Vincent X. v. Christine Y., 151 A.D.3d 1229, 1229–1230, 55 N.Y.S.3d 831 [2017];  Matter of Christina KK. v. Kathleen LL., 119 A.D.3d 1000, 1002, 990 N.Y.S.2d 100 [2014];  Matter of Melissa K. v. Brian K., 72 AD3d 1129, 1133, 898 N.Y.S.2d 318 [2010] ).  Thus, even if petitioner failed to establish the commission of all the alleged family offenses, Family Court properly granted the petition, and we perceive no reason to disturb the ensuing order of protection (see Matter of Hart v. Hart, 31 A.D.3d 846, 847, 817 N.Y.S.2d 762 [2006] ).

ORDERED that the order is affirmed, without costs.

Devine, J.

Egan Jr., J.P., Clark, Mulvey and Rumsey, JJ., concur.

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