                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 29, 2016                   521951
________________________________

In the Matter of MARIANNA K.,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
DAVID K.,
                    Appellant.

________________________________

Calendar Date:   November 21, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


     Dana L. Salazar, East Greenbush, for appellant.

     Karen R. Crandall, Glenville, attorney for the children.

                             __________


Aarons, J.

      Appeal from an order of the Family Court of Schenectady
County (Polk, J.), entered October 23, 2015, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 8, for an order of protection.

      Petitioner and respondent are the married parents of two
children (born in 2008 and 2009). The parties separated in 2014
and, in February 2015, petitioner commenced this proceeding
alleging that respondent committed certain family offenses.
Following a fact-finding hearing, Family Court found in its May
2015 oral decision that respondent committed, among other things,
the family offense of harassment in the second degree. Following
a dispositional hearing, Family Court concluded in its September
2015 decision that a one-year order of protection requiring that
respondent stay away from petitioner and the children was
appropriate. A written order of protection was issued in October
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2015 with retroactive effect to September 2015.   Respondent now
appeals.

      Preliminarily, respondent purports to appeal from Family
Court's September 2015 decision, from which no appeal lies (see
Matter of Gunthorpe v Cathey, 52 AD3d 907, 908 n [2008]).
Nevertheless, the October 2015 order is part of the record and
the parties have addressed the merits of the appeal. Upon the
exercise of our discretion, we therefore deem respondent's
premature notice of appeal as valid (see CPLR 5520 [c]; Matter of
Hayden II. [Renee II.–Devan JJ.], 135 AD3d 997, 998 [2016], lv
denied 27 NY3d 904 [2016]). We also note that the expiration of
the order of protection by its own terms does not render
respondent's appeal moot given that the "order still imposes
significant enduring consequences upon respondent" (Matter of
Veronica P. v Radcliff A., 24 NY3d 668, 671 [2015]; see Matter of
Rogers v Phillips, 138 AD3d 1183, 1183 n [2016]).

      Turning to the merits, petitioner maintains the burden of
demonstrating by a fair preponderance of the evidence that
respondent committed the alleged family offenses (see Family Ct
Act § 832; Matter of Elizabeth X. v Irving Y., 132 AD3d 1100,
1101 [2015]). As relevant here, harassment in the second degree
requires proof that an individual "with intent to harass, annoy
or alarm another person . . . engages in a course of conduct or
repeatedly commits acts which alarm or seriously annoy such other
person and which serve no legitimate purpose" (Penal Law § 240.26
[3]). "Whether a family offense has been committed is a factual
issue to be resolved by . . . Family Court, and its
determinations regarding the credibility of witnesses are
entitled great weight on appeal" (Matter of Maureen H. v Bryon
I., 140 AD3d 1408, 1409-1410 [2016] [internal quotation marks and
citation omitted]).

      At the fact-finding hearing, petitioner testified that
respondent incessantly called her, sometimes late at night, from
known or blocked phone numbers and that, in these phone calls,
respondent yelled profanities and called her vulgar names.
Petitioner also testified that respondent "would be aggressive
toward[s] [her]," threatened that he would "get [her]" and warned
that she "wouldn't get away with this." As a consequence of
                              -3-                521951

these phone calls, petitioner felt "nervous, shook up and [she]
couldn't sleep." Respondent does not dispute that he telephoned
petitioner and likewise admitted that he made up to five calls a
day. While respondent denied being aggressive or calling at late
hours, Family Court, in its oral decision, found that respondent
"was not a credible witness." Inasmuch as we defer to Family
Court's assessment of the witnesses's credibility (see Matter of
Robert Q. v Miranda Q., 138 AD3d 1174, 1176 [2016]; Matter of
Christina KK. v Kathleen LL., 119 AD3d 1000, 1002 [2014]), we
conclude that a preponderance of the evidence supported Family
Court's determination that respondent committed the family
offense of harassment in the second degree (see Matter of Lynn
TT. v Joseph O., 129 AD3d 1129, 1130-1131 [2015]; Matter of
Kritzia B. v Onasis P., 113 AD3d 529, 529 [2014]; Matter of
Cukerstein v Wright, 68 AD3d 1367, 1369 [2009]).

      We also reject respondent's challenge to the stay-away
provisions in the order of protection to the extent that they
pertain to the children. Petitioner testified that the children
became upset and distraught after respondent's phone calls and
that they were "shook up by his behavior." After the temporary
order of protection against respondent came into effect during
the proceeding, the children's behavior and temperament improved.
Petitioner also testified that the children told her that they
did not want to speak with respondent. Under these
circumstances, we find that the provisions prohibiting
respondent's contact with the children were reasonable and
necessary (see Matter of Jeff M. v Christine N., 101 AD3d 1426,
1428 [2012]).

      Respondent's remaining contentions have been examined and
are found to be without merit.

     McCarthy, J.P., Lynch, Rose and Clark, JJ., concur.
                        -4-                  521951

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
