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M. B. (Anonymous) v. L. T. (Anonymous)

Supreme Court of New York, Second Department

July 5, 2017

M. B. (Anonymous), respondent,
v.
L. T. (Anonymous), appellant. Index No. 50196/12

          Argued-May 1, 2017

         D52734 O/afa

          Kathy A. Polias, Brooklyn, NY, for appellant.

          Elliot Green, Brooklyn, NY, for respondent.

          Karen P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the children.

          MARK C. DILLON, J.P., SYLVIA O. HINDS-RADIX HECTOR D. LASALLE FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeal by the father from an order of the Supreme Court, Richmond County (Barbara Irolla Panepinto, L), 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 the mother.

         ORDERED that the order is affirmed, without costs or disbursements.

         In her 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 degree.

         A 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 Rowley, 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).

         The 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[1]; 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[3]; Rosenstock v Rosenstock,149 A.D.3d 887'; Matter of Zhou Hong Zhengv 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 ...


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