Opinion
12840 Dkt. No. O-18631/16 Case No. 2020-01423
01-12-2021
In the Matter of GENESIS E.R., Petitioner–Respondent, v. JAREL E.R., Respondent–Appellant.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Kenneth M. Tuccillo, Hastings on Hudson, for respondent. Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for respondent.
Dawne A. Mitchell, The Legal Aid Society, New York (Susan Clement of counsel), attorney for the child.
Order, Family Court, Bronx County (Gilbert A. Taylor. J.), entered on or about January 3, 2020, which, upon a fact-finding determination that respondent committed the family offenses of assault in the third degree and menacing in the third degree, granted a two-year order of protection in favor of petitioner, unanimously affirmed, without costs.
A fair preponderance of the evidence ( Family Court Act § 832 ) supports the Family Court's finding that respondent father committed acts constituting the family offense of menacing in the third degree (see Penal Law § 120.15 ; Matter of Omobolanle O. v. Kevin J., 154 A.D.3d 442, 60 N.Y.S.3d 822 [1st Dept. 2017] ). Petitioner testified that respondent shoved her to the floor after telling her he was going to beat her up, causing her to be frightened for her safety and the child's well-being.
The family offense of assault in the third degree was also supported by petitioner's testimony that respondent slammed her to the floor causing her pain that was "more than slight or trivial" ( People v. Martinez, 90 A.D.3d 409, 410, 933 N.Y.S.2d 285 [1st Dept. 2011], lv denied 18 N.Y.3d 960, 944 N.Y.S.2d 488, 967 N.E.2d 713 [2012] [internal quotation marks omitted]; see Penal Law § 120.00 ).
There exists no basis for disturbing the Family Court's credibility determinations (see Matter of Veronica P. v. Radcliff A., 126 A.D.3d 492, 2 N.Y.S.3d 799 [1st Dept. 2015], lv denied 25 N.Y.3d 911, 15 N.Y.S.3d 287, 36 N.E.3d 90 [2015] ). The court was entitled to credit portions of petitioner's testimony notwithstanding that it rejected her testimony in other respects (see Matter of Sonia S. v. Pedro Antonio S., 139 A.D.3d 546, 547 [1st Dept. 2016] ).