           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1321
CAF 12-00970
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF AMANDA R. DIETZMAN,
PETITIONER-RESPONDENT,

                      V                           MEMORANDUM AND ORDER

JASON E. DIETZMAN, RESPONDENT-APPELLANT.


FARES A. RUMI, ROCHESTER, FOR RESPONDENT-APPELLANT.

CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-RESPONDENT.

LINDA M. JONES, ATTORNEY FOR THE CHILDREN, BATAVIA.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered April 26, 2012 in a proceeding pursuant to Family
Court Act article 8. The order, among other things, directed
respondent to stay away from petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to article 8 of the
Family Court Act, respondent, the former husband of petitioner and the
father of her two children, appeals from an order of protection
directing him, inter alia, to stay away from petitioner. Contrary to
respondent’s contention, Family Court’s finding that he committed the
family offenses of assault in the third degree (Penal Law § 120.00
[1]), harassment in the second degree (§ 240.26 [1]), and disorderly
conduct (§ 240.20 [1]) is supported by a preponderance of the evidence
(see Matter of Marquardt v Marquardt, 97 AD3d 1112, 1113; see
generally Family Ct Act § 812 [1]). The testimony presented at the
fact-finding hearing established that respondent kicked petitioner in
the face, resulting in bruises, swelling, and a cut lip requiring
stitches, and that while on top of petitioner he put his hands around
her neck to prevent her from breathing. The court’s determination
that respondent was not acting in self-defense is supported by the
record and will not be disturbed (see Matter of Medranda v Mondelli,
74 AD3d 972, 972). We reject respondent’s further contention that he
was denied effective assistance of counsel (see Matter of Amodea D.,
___ AD3d ___ [Dec. 27, 2013]).


Entered:    December 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
