Opinion
12258 Dkt. No. O–35379–18 Case No. 2019–03500
11-05-2020
In re TAWANDA A.A., Petitioner-Respondent, v. JOSEPH D.A., Respondent-Appellant.
Andrew J. Baer, New York, for appellant. Diaz & Moskowitz, PLLC, Garden City (Hani M. Moskowitz of counsel), for respondent.
Andrew J. Baer, New York, for appellant.
Diaz & Moskowitz, PLLC, Garden City (Hani M. Moskowitz of counsel), for respondent.
Gische, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Order of fact-Finding and disposition, Family Court, Bronx County (Tamra Walker, Ref.), entered on or about July 15, 2019, which granted the petition, upon a fact-Finding determination that respondent committed the family offenses of harassment in the second degree and harassment in the first or second degree, unanimously modified, on the law and the facts, to vacate the finding of harassment in the first or second degree, affirm the determination of harassment in the second degree, and otherwise affirm, without costs.
The Family Court's finding that respondent committed the family offense of harassment in the second degree is supported by a fair preponderance of the evidence (see Family Ct Act § 832 ). Petitioner testified that during an argument, respondent grabbed her from behind and threw her on the coffee table, causing her pain and bruising to her back. The court properly inferred intent from respondent's actions and the surrounding circumstances (see Matter of Ramona A.A. v. Juan M.N. , 126 A.D.3d 611, 3 N.Y.S.3d 599 [1st Dept. 2015] ).
While the Family Court erred in considering petitioner's testimony about an earlier incident that took place prior to December 2018, because the family offense petition failed to allege it (see Matter of Kim Yvette W. v. Leola Patricia W. , 140 A.D.3d 495, 34 N.Y.S.3d 14 [1st Dept. 2016] ; Matter of Sasha R. v. Alberto A. , 127 A.D.3d 567, 8 N.Y.S.3d 277 [1st Dept. 2015] ), there is nevertheless ample support in the record for the court's determination that petitioner proved that respondent committed the family offense of harassment in the second degree.
Although the Family Court stated on the record that respondent committed acts which constituted the family offense of harassment in the second degree, its written order of fact-Finding and disposition incorrectly stated that respondent also committed the family offenses of harassment in the first or second degree. An order must conform strictly to the court's decision ( Di Prospero v. Ford Motor Co. , 105 A.D.2d 479, 480, 480 N.Y.S.2d 784 [3d Dept. 1984] ), and where there is a conflict between the two, the decision controls (see Madison III Assocs. v. Brock , 258 A.D.2d 355, 685 N.Y.S.2d 239 [1st Dept. 1999] ). We modify the subject provisions of the order accordingly.