Opinion
10-05-2017
In re OMOBOLANLE O., Petitioner–Respondent, v. KEVIN J., Respondent–Appellant.
Larry S. Bachner, New York, for appellant. Debevoise & Plimpton LLP, New York (Ann Marie Domyancic of counsel), for respondent.
Larry S. Bachner, New York, for appellant.
Debevoise & Plimpton LLP, New York (Ann Marie Domyancic of counsel), for respondent.
Order, Family Court, Bronx County (Llinet M. Rosado, J.), entered on or about May 11, 2016, which determined that respondent Kevin J. committed the family offenses of reckless endangerment in the second degree, menacing in the third degree, criminal mischief in the fourth degree, harassment in the second degree and disorderly conduct, and awarded petitioner a five-year order of protection directing respondent to, inter alia, stay away from her and the parties' child, and not contact them except as necessary to effectuate court-ordered visitation, unanimously affirmed, without costs.
Contrary to petitioner's contention, the appeal is timely because the order, which was served in open court, does not contain the language required by Family Court Act § 1113 notifying respondent that he had 30 days to appeal.
Having reviewed the record, and finding no grounds to disturb Family Court's credibility determinations (see Matter of Lisa W. v. John M., 132 A.D.3d 459, 460, 18 N.Y.S.3d 370 [1st Dept.2015] ), we conclude that the allegations in the petition were established by a fair preponderance of the evidence (see Family Ct. Act § 832 ). The record establishes that respondent's actions during a July 2013 incident constituted the family offense of reckless endangerment in the second degree, as petitioner testified that he shoved her head against a wall, put his hands around her neck and squeezed until she could not breathe, and punched her repeatedly with his fists, demonstrating a disregard of the substantial risk that he could have seriously injured her (see Matter of Rebecca M.T. v. Trina J.M., 134 A.D.3d 551, 23 N.Y.S.3d 15 [1st Dept.2015] ).The family offense of criminal mischief in the fourth degree is supported by respondent's own testimony that he purposefully destroyed petitioner's speaker and cell phone. Contrary to respondent's contention, it was not necessary to demonstrate the value of the destroyed property (see Matter of Michael M., 201 A.D.2d 288, 289, 607 N.Y.S.2d 277 [1st Dept. 1994] ; People v. Cunningham, 95 A.D.2d 680, 680, 463 N.Y.S.2d 470 [1st Dept.1983], lv. denied 60 N.Y.2d 615, 467 N.Y.S.2d 1045, 454 N.E.2d 944 [1983] ).
The family offense of menacing in the third degree is supported by petitioner's testimony that respondent forcibly removed her from his vehicle, then told her she would have to "go through him" if she tried to take the child with her, causing her to be frightened for her and the child's safety (see Matter of Sonia S. v. Pedro Antonio S., 139 A.D.3d 546, 547, 31 N.Y.S.3d 500 [1st Dept.2016] ; Matter of Daniel R., 49 A.D.3d 266, 267, 853 N.Y.S.2d 42 [1st Dept.2008] ).
The family offense of disorderly conduct was established by testimony that the parties' neighbors appeared during an altercation and yelled that if disruptions did not cease, they would contact the police (see Matter of Tamara A. v. Anthony Wayne S., 110 A.D.3d 560, 560–561, 974 N.Y.S.2d 48 [1st Dept.2013] ).
Finally, the family offense of harassment in the second degree was established by testimony that respondent grabbed the child from petitioner, pushed her to the floor, stomped on her with his boots, and punched her all over her body, causing injury (see Matter of Jessica C. v. Esteban B., 13 A.D.3d 183, 183, 785 N.Y.S.2d 915 [1st Dept.2004] ).
The finding that aggravated circumstances existed warranting a five-year order of protection is supported by a preponderance of the evidence showing that respondent engaged in a series of violent and threatening actions directed at petitioner while in the presence of the child (see Matter of Pei–Fong K. v. Myles M., 94 A.D.3d 675, 676, 943 N.Y.S.2d 467 [1st Dept.2012] ).
RENWICK, J.P., WEBBER, OING, MOULTON, JJ., concur.