Matter of Marte v Caraballo

Matter of Marte v Caraballo 2014 NY Slip Op 02940 Decided on April 30, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 30, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RUTH C. BALKIN, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
2013-08299
(Docket No. O-6686-13)

[*1]In the Matter of Laneska Marte, appellant,

v

Miguel Caraballo, respondent.




Joseph H. Nivin, Jamaica, N.Y., for appellant.
Ade Agbayewa, Fresh Meadows, N.Y., for respondent.


DECISION & ORDER

In a family offense proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Arias, J.), dated August 13, 2013, which, after a hearing, denied the petition and dismissed the proceeding.

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

"In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence,' that the charged conduct was committed as alleged in the petition" (Matter of Cassie v Cassie, 109 AD3d 337, 340, quoting Family Ct Act § 832; see Matter of Testa v Strickland, 99 AD3d 917, 917). "The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court" (Matter of Creighton v Whitmore, 71 AD3d 1141, 1141; see Family Ct Act §§ 812, 832; Matter of Yalvac v Yalvac, 83 AD3d 853, 854), whose "determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record" (Matter of Creighton v Whitmore, 71 AD3d at 1141; see Matter of Yalvac v Yalvac, 83 AD3d at 854).

Here, the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent's act of allegedly sending her a text message constituted the family offense of aggravated harassment in the second degree (see Family Ct Act § 812[1]; Penal Law § 240.30[1]). Additionally, the petitioner failed to establish, by a fair preponderance of the evidence, that certain alleged conduct by the respondent in 2003 constituted the family offense of harassment in the second degree (see Family Ct Act § 812[1]; Penal Law § 240.26). The Family Court's determination that the petitioner's testimony was lacking in credibility is entitled to great weight on appeal, as it is supported by the record (see Matter of Bah v Bah, 112 AD3d 921, 922; see generally Matter of Shields v Brown, 107 AD3d 1005, 1006; Matter of Yalvac v Yalvac, 83 AD3d at 854).

Accordingly, the Family Court properly denied the petition and dismissed the proceeding. [*2]
BALKIN, J.P., DICKERSON, ROMAN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court