Saldivar v. Cabrera

Summary

The Appellate Division affirmed orders dismissing Cesar Alfonso Saldivar’s family offense petition and issuing an order of protection after finding that he committed disorderly conduct and second-degree harassment. The court held that the finding was supported by a fair preponderance of the credible evidence, deferred to the Family Court’s credibility determinations, and concluded that the appeal from the expired order of protection remained justiciable because of its potential enduring consequences.

Holdings

1. The expiration of the order of protection did not render the appeal academic because enduring consequences could potentially flow from the finding that Saldivar committed the family offenses.
2. A family offense must be established by a fair preponderance of the evidence, and the credible evidence supported the Family Court's determination that Saldivar committed disorderly conduct and harassment in the second degree.
3. The Appellate Division will give great weight to the Family Court's credibility determinations and will not disturb them unless clearly unsupported by the record.
4. The appellant's remaining contention was not properly before the Appellate Division because it raised an issue not determined by the orders appealed from.

Questions Presented

1. Whether the appeal from the expired order of protection was rendered academic.
2. Whether a fair preponderance of the credible evidence supported the Family Court's finding that Saldivar committed disorderly conduct and harassment in the second degree.
3. Whether the Family Court improperly resolved sharply conflicting testimony by crediting Cabrera.
4. Whether Saldivar's remaining appellate contention was properly before the Appellate Division.

Disposition

affirmed