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Danielle S. v. Larry R.S.

41 A.D.3d 1188 Court N.Y. App. Div. Decision date 2007-06-08 Docket Appeal No. 1 English

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p. 1188
In the Matter of Danielle S., Respondent, v Larry R.S., Jr., Appellant.
(Appeal No. 1.)
[838 NYS2d 740]

Appeal from an order of the Family Court, Erie County (Rosalie S. Bailey, J.), entered August 11, 2006 in a proceeding pursuant to Family Court Act article 8. The order directed respondent to follow certain conditions of behavior until August 11, 2011.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent erroneously appealed from the fact-finding order rather than from the two orders of protection issued following the dispositional hearing. Nevertheless, by a prior order of this Court, we exercised our discretion to treat the notice of appeal as valid and deem the appeals as taken from the orders of protection, which constitute orders of disposition pursuant to Family Court Act § 841 (d) (see Matter of Ariel C., 248 AD2d 976 [1998], lv denied 92 NY2d 801 [1998]; Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; see also CPLR 5520 [c]).

p. 1189
Family Court’s assessment of the credibility of the witnesses is entitled to great weight, and the record supports the court’s finding that petitioner was a more credible witness than respondent (see Matter of Charles v Charles, 21 AD3d 487 [2005]). The record also supports the court’s determination that petitioner met her burden of establishing by a preponderance of the evidence that respondent committed acts constituting the crime of assault in the third degree, thus warranting the issuance of orders of protection in favor of the parties’ children and petitioner (see Family Ct Act § 812 [1]; Matter of Abbott v Burnes, 27 AD3d 555 [2006]). Contrary to the contention of respondent, evidence that he committed acts of violence against petitioner in the presence of each child warrants the issuance of the order of protection in favor of the children (see Matter of Charlene J.R. v Walter A.M., 307 AD2d 1038 , 1039 [2003]; see also Matter of Machukas v Wagner, 246 AD2d 840 , 842-843 [1998], lv denied 91 NY2d 813 [1998]). Present—Scudder, P.J., Gorski, Martoche, Smith and Green, JJ.

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