M.B. (Anonymous), respondent,
L.T. (Anonymous), appellant. Index No. 50196/12
A. Polias, Brooklyn, NY, for appellant.
Green, Brooklyn, NY, for respondent.
P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet
Neustaetter of counsel), attorney for the children.
C. DILLON, J.P., SYLVIA O. HINDS-RADIX, HECTOR D. LASALLE,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the father from an order of the Supreme Court, Richmond
County (Barbara Irolla Panepinto, J.), dated April 22, 2016.
The order, after a hearing, found that the father committed
the family offense of harassment in the second degree and
directed the issuance of an order of protection in favor of
that the order is affirmed, without costs or disbursements.
family offense petition pursuant to Article 8 of the Family
Court Act, the mother alleged that the father committed
multiple acts of physical violence against her in the
presence of the parties' older child, used emotionally
abusive language directed at her, and had threatened to use
video recordings against her in court. Thereafter, the
Supreme Court consolidated the family offense proceeding with
an action for a divorce and ancillary relief under Index No.
50196/12. After a hearing, the court found that the father
had committed the family offense of harassment in the second
family offense must be established by a fair preponderance of
the evidence (Matter of Mayers v Thompson, 145
A.D.3d 1010). The determination of whether a family offense
was committed is a factual issue to be resolved by the
hearing court, and its determinations regarding the
credibility of witnesses are entitled to great weight on
appeal unless clearly unsupported by the record (see
Matter of Graham v Rawley, 147 A.D.3d 1053; Matter
of Charrat v Jeanty, 146 A.D.3d 947; Matter of Nunez
v Diaz, 145 A.D.3d 786; Matter of Savas v
Bruen, 139 A.D.3d 737). Here, there is no basis in the
record to disturb the Supreme Court's credibility
determinations. Contrary to the father's contention, the
court properly considered his demeanor and behavior in the
courtroom, including during the divorce proceeding, in
assessing his credibility (see Matter of Gilbert v
Gilbert, 128 A.D.3d 1286; Matter of Joshua E.R.
[Yolaine R.], 123 A.D.3d 723, 726; Matter of
Caraballo v Colon, 9 A.D.3d 459).
mother established by a fair preponderance of the evidence
that the father committed the family offense of harassment in
the second degree in that, with intent to harass, annoy, or
alarm her, he struck, shoved, kicked, or otherwise subjected
her to physical contact (see Penal Law §
240.26; Matter of Konstatine v Konstatine, 107
A.D.3d 994), and he engaged in a course of conduct that
alarmed or seriously annoyed her and served no legitimate
purpose (see Penal Law § 240.26;
Rosenstock v Rosenstock,149 A.D.3d 887; Matter
of Zhou Hong Zheng v Hsin Cheng,144 A.D.3d 1166).
Although the father alleges that the mother was the initial
aggressor during one or more incidents, and that the injuries
she sustained were caused by her own actions during
arguments, the record does not show that the mother's
actions were the cause of her injuries (cf. Matter of
Cavanuagh v Madden,298 A.D.2d 390; Matter of M.T. v
E.T.,18 Misc.3d 418, 421 [Family Ct, Nassau County]).
Furthermore, although the father's words alone do not
constitute criminal conduct, in the context established by
the evidence at trial, including his physical acts, they were
not constitutionally protected (see Matter of Salazar v
Melendez,97 A.D.3d 754; Matter of Corey v
Corey,40 A.D.3d 1253; Matter of Ivan F., 233
A.D.2d 210). The father's course of conduct toward the
mother, which included throwing items at her, videotaping her
while she was upset, and ...