Opinion
9950
10-01-2019
In re YENIS C., Petitioner–Respondent, v. DANIEL R., Respondent–Appellant.
Steven N. Feinman, White Plains, for appellant. Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Steven N. Feinman, White Plains, for appellant.
Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Richter, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order of fact-finding and disposition (one paper), Family Court, New York County (Gail A. Adams, Referee), entered on or about January 19, 2018, which, upon a fact-finding determination that respondent father Daniel R. committed the family offenses of assault in the third degree and menacing in the third degree, granted a one-year order of protection in favor of petitioner mother Yenis C., unanimously affirmed, without costs.
Given the enduring consequences which may potentially flow from an adjudication that respondent committed a family offense, this Court will address the merits of an appeal even though the order of protection at issue has expired (see Matter of Charlene R. v. Malachi R., 151 A.D.3d 482, 482, 53 N.Y.S.3d 530 [1st Dept. 2017] ). Contrary to respondent's contention, the record is sufficiently complete to allow this Court to make an independent factual review and draw its own conclusions as to whether petitioner demonstrated the petition's allegations by a preponderance of the evidence.
There is no basis to disturb the Referee's credibility determinations (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ). Based upon our review of the record we find that a preponderance of the evidence adduced at the fact-finding hearing established that respondent's actions during the March 13, 2015 incident constituted the family offense of menacing in the third degree ( Penal Law § 120.15 ), because petitioner's testimony that he threatened her with a steak knife and told her that "he wanted to kill [her]," causing her to become "very scared" and "very sad," shows that his words and actions placed or attempted to place her in fear of death, imminent serious physical injury or physical injury (see Family Ct Act § 832 ; Matter of Sonia S. v. Pedro Antonio S., 139 A.D.3d 546, 31 N.Y.S.3d 500 [1st Dept. 2016] ; Matter of William M. v. Elba Q., 121 A.D.3d 489, 994 N.Y.S.2d 110 [1st Dept. 2014] ; Matter of Melind M. v. Joseph P., 95 A.D.3d 553, 555, 944 N.Y.S.2d 82 [1st Dept. 2012] ).
We also find that petitioner's testimony that she was in a lot of pain on one occasion after respondent pushed and kicked her, requiring emergency medical attention, and had difficulty breathing on another while respondent sat on her head for about one minute and would not get off her until their 14–year–old daughter intervened, was sufficient to establish that his actions constituted the family offense of assault in the third degree ( Penal Law § 120.00[1] ); People v. Martinez, 90 A.D.3d 409, 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] ; People v. Delph, 269 A.D.2d 218, 704 N.Y.S.2d 209 [1st Dept. 2000], lv denied 94 N.Y.2d 947, 710 N.Y.S.2d 3, 731 N.E.2d 620 [2000] ).
We have reviewed the remaining arguments of the parties and find them unavailing.