Opinion
12-23-2015
In the Matter of Faiza Q. KIANI, respondent, v. Muhammad N. KIANI, appellant.
Law Offices of Vanessa Sanders, P.C., Saratoga Springs, NY, for appellant. Law Office of Brynde Berkowitz, P.C., Woodmere, NY, for respondent. Ralph R. Carrieri, Mineola, NY, attorney for the children.
Law Offices of Vanessa Sanders, P.C., Saratoga Springs, NY, for appellant.
Law Office of Brynde Berkowitz, P.C., Woodmere, NY, for respondent.
Ralph R. Carrieri, Mineola, NY, attorney for the children.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, COLLEEN D. DUFFY and HECTOR D. LaSALLE, JJ.
ORDERED that the order of protection is affirmed, with costs.
In September 2014, the wife of Muhammad N. Kiani filed a family offense petition in Family Court seeking an order of protection against Kiani, alleging that he had committed family offenses against her, as well as against her 13–year–old daughter and the parties' sons, ages 3 and 6. At the time the petition was filed, the parties were married and resided together with the three children. Following a fact-finding hearing on the petition, the court determined that Kiani's conduct constituted the family offenses of harassment in the second degree, aggravated harassment in the second degree, disorderly conduct, and menacing in the third degree. Immediately following the fact-finding hearing, the Family Court conducted a dispositional hearing and, thereafter, issued an order of protection, directing, inter alia, Kiani to stay away from his wife, her daughter, and the parties' sons, up to and including September 22, 2016, except for parenting time with the two sons pursuant to future court order.
In a family offense proceeding, the allegations must be "supported by a fair preponderance of the evidence" (Family Ct.Act § 832 ; see Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 716, 986 N.Y.S.2d 350 ; Matter of Zina L. v. Eldred L., 113 A.D.3d 852, 853, 979 N.Y.S.2d 542 ; Matter of Miloslau v. Miloslau, 112 A.D.3d 632, 632, 975 N.Y.S.2d 894 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the Family Court's determination regarding the credibility of witnesses is entitled to great weight on appeal" (Matter of Zina L. v. Eldred L., 113 A.D.3d at 853, 979 N.Y.S.2d 542 ; see Matter of Tulshi v. Tulsi, 118 A.D.3d at 716, 986 N.Y.S.2d 350 ; Matter of Kondor v. Kondor, 109 A.D.3d 660, 660, 971 N.Y.S.2d 21 ) and should not be disturbed unless clearly unsupported by the record (see Matter of Miloslau v. Miloslau, 112 A.D.3d at 632, 975 N.Y.S.2d 894 ).
The evidence adduced at the hearing established, by a fair preponderance of the evidence, that Kiani committed acts which constituted the family offenses of harassment in the second degree (Penal Law § 240.26[1] ; see Family Ct. Act § 812[1] ; Matter of Smith v. Amedee, 101 A.D.3d 1033, 1033, 956 N.Y.S.2d 172 ), disorderly conduct (Penal Law § 240.20 [1] ; see Family Ct. Act § 812[1] ; Matter of Smith v. Amedee, 101 A.D.3d at 1033, 956 N.Y.S.2d 172 ), and menacing in the third degree (Penal Law § 120.15 ; see Family Ct. Act § 832 ; Matter of Kaur v. Singh, 73 A.D.3d 1178, 1178, 900 N.Y.S.2d 895 ), warranting the issuance of an order of protection against him (see Matter of Parameswar v. Parameswar, 109 A.D.3d 473, 474, 970 N.Y.S.2d 793 ; Matter of Hagopian v. Hagopian, 66 A.D.3d 1021, 1022, 887 N.Y.S.2d 682 ). The record shows that, during the incident at issue, Kiani threatened his wife in their two-family home and shoved her, causing her to slam against a wall. In addition, Kiani, in the presence of the parties' sons, also screamed and shouted threats and curses at the wife's daughter, while he slammed doors open and shut, causing the wife to flee from the home with her daughter and sons. The parties' accounts regarding this incident sharply conflicted, and the Family Court credited the testimony of the wife (see Matter of Musheyev v. Musheyev, 126 A.D.3d 800, 801 ; Matter of Saldivar v. Cabrera, 109 A.D.3d 831, 832, 971 N.Y.S.2d 310 ). As the court's determination is supported by the record, there is no basis to disturb the court's determination as to those family offenses.
The evidence adduced at the hearing did not establish that Kiani committed the family offense of aggravated harassment in the second degree (see e.g. Matter of Hagopian v. Hagopian, 66 A.D.3d at 1022, 887 N.Y.S.2d 682 ), nor had the wife even alleged that Kiani committed this offense in her petition (see e.g. Matter of Czop v. Czop, 21 A.D.3d 958, 959, 801 N.Y.S.2d 63 ), and there was no motion to conform the petition to include this offense during or after the fact-finding (see CPLR 3025[c] ; Matter of DiRusso v. Hendrick, 264 A.D.2d 523, 524, 694 N.Y.S.2d 471 ). Although the Family Court should not have found that Kiani committed that family offense, the order of protection was warranted based upon the court's findings with respect to the other three family offenses.
Under the circumstances presented here, the two-year order of protection was reasonably necessary to enable the wife and the children to have meaningful protection (see Matter of Miloslau v. Miloslau, 112 A.D.3d at 632–633, 975 N.Y.S.2d 894 ).
Kiani's remaining contentions are without merit.