Opinion
xxxxxx
12-22-2016
A.G.S. v. D.S.
Appearances of Counsel: Dara Lynn Sheinfeld, Bronx, for Petitioner, Ms. A.G.S. Mr. D.S. - Pro Se.
Appearances of Counsel: Dara Lynn Sheinfeld, Bronx, for Petitioner, Ms. A.G.S. Mr. D.S. - Pro Se. Tracey A. Bing, J.
A petition under Article 8 of the Family Court Act having been filed in this Court; and the Petitioner, Ms. A.G.S., having appeared with counsels Ms. Dara Lynn Sheinfeld, Esq. and Ms. Tansy Woan, Esq. The Respondent, Mr. D.S. having appeared with counsel Ms. Leslie R. Jones-Thomas, Esq. and the matter having duly come on for a fact-finding hearing before this Court;
After a fact finding hearing this Court found that after hearing the proofs and testimony offered in relation to the case; The Petitioner established by the fair preponderance of the evidence that the Respondent's behavior constituted the following family offenses: harassment in the second degree, assault in the second degree and menacing in the second and third degrees. The Petitioner and Respondent were in an intimate relationship before they got married on June 26, 2013. See the Court's written decision dated April 8, 2016.
In its decision the Court found aggravating circumstances under F.C.A. § 827 [a][vii] and issued a five-year full stay away order of protection for the Petitioner. The Court ordered that the Respondent immediately surrender his firearm to the Maryland Police Department. During the proceedings, the Respondent submitted proof that his firearm was surrendered to the Maryland Police Department. The Court also included in its decision that a hearing shall be held to determine whether this Court shall revoke the existing firearm license possessed by the Respondent and order the Respondent ineligible for such a license. The Court finds that the Respondent's conduct involved the infliction of physical injury to the Petitioner by the Respondent. The Court orders that the Respondent's license to carry, possess, repair or dispose of a firearm is revoked for the period of the order of protection. The Court orders that the Respondent shall be ineligible for a license to carry, possess, repair or dispose of a firearm effective immediately until the expiration of the final order of protection issued by this Court. See F.C.A. § 842-a.
On June 1, 2016 this Court stayed its order revoking the Respondent's firearm license and finding the Respondent ineligible for the license pending a hearing pursuant to F.C.A. § 842-a. The court scheduled a hearing on June 14, 2016. A hearing was held on September 22, 2016 after three adjournments. Notice of the hearing was sent to the parties and all counsel. The Petitioner did not appear. The Respondent, his former counsel Ms. Leslie Jones-Thomas and Petitioner's counsel Ms. Dara Sheinfeld appeared. The Respondent discharged Ms. Jones-Thomas and waived counsel.
The hearing was rescheduled to July 19, 2016 after the Court granted the Respondent's written adjournment request due to work obligations in Maryland for the Court appearance on June 14, 2016. Ms. Jones-Thomas, counsel for the Respondent, informed that Court that the Respondent told her that he was unable to attend due to his employment. The Court notes that the Respondent lives and works in Maryland. The Court marked the hearing date "final" for the Respondent to attend. Ms. Jones-Thomas also informed the Court that she would be filing a motion to be relieved as retained counsel.
On July 19, 2016 there were no appearances for the hearing. The court read the Respondent's written request for an adjournment due to jury duty service. He provided a copy of the letter requiring him to appear for jury duty. The Court granted the adjournment. The Court's court attorney sent email notice to all counsel and both parties that the final hearing date was scheduled for August 18, 2016. The Court also mailed both parties a "notice to appear in court for trial on August 18, 2016". The August 18, 2016 hearing was adjourned due to an "affirmation of actual engagement" filed by Ms. Sheinfeld, Petitioner's counsel. The hearing was adjourned to September 22, 2016. Notice was sent to all parties and counsel.
Testimony at the license revocation hearing
The only evidence presented at the hearing was the testimony of Mr. D.S., the Respondent. He testified that he served six years in the military. He testified that he married the Petitioner who falsely accused him of the family offenses. He further testified that he has never been convicted of a crime. He has "never dealt with this; [I] always did anything right in my life." He continued that he does not come to New York except to appear for these Court proceedings. He is divorced from the Petitioner and he has no ties with her.
He continued his testimony stating the he did not use a firearm. Although the Petitioner called the police in Maryland, he was not arrested. His current occupation is a rail car technician. He has had a firearm license since 1995. He currently has a license from Maryland. His firearm was surrendered to the Maryland Police. The Respondent continued to testify about the allegations of the underlying family offense petition. He stated that the Petitioner was not telling the truth. The Court informed the Respondent that a full hearing on the family offense petition was held and findings were issues in the Court's April 8, 2016 decision and order. The Court informed the Respondent that this proceeding is solely for the purpose of addressing whether the Respondent's firearm license must be revoked and whether he will be found ineligible for such a license as per F.C.A. § 842-a [2](a). The Court informed the Respondent that this is not the proper forum to appeal the Court's decision for the underlying family offense petition.
Petitioner's counsel did not cross examine the Respondent. The Respondent did not offer further documentary evidence or witnesses. The Court credits the testimony of the Respondent regarding his employment, military history, lack of contact with the Petitioner, marital status of the parties and lack of previous criminal history. The Court does not credit or consider his testimony regarding the family offenses. There was a previous fact finding hearing where the Court made its findings.
The Court takes judicial notice of the testimony during the hearings for the underlying family offense petition held on March 17, 2014, June 5, 2014, June 6, 2014, August 12, 2014, January 15, 2015, and September 14, 2015. The sole purpose of considering the testimony at the family offense hearing is to determine whether the conduct which resulted in the issuance of the order of protection involved the infliction of physical injury. The only issue at the license revocation and license ineligibility hearing is whether the order of protection was issued because the respondent caused physical injury to the Petitioner. After this hearing concluded, the Court reserved decision.
Statutes
"An order of protection under section eight hundred forty-one of this part shall set forth reasonable conditions of behavior to be observed for a period not in excess of five years upon (i) a finding by the court on the record of the existence of aggravating circumstances" (Family Court Act § 842). "[A]ggravating circumstances shall mean physical injury or serious physical injury to the Petitioner caused by the Respondent, the use of a dangerous instrument against the Petitioner by the Respondent, [ ] or the exposure of any family or household member to physical injury by the Respondent and like incidents, behaviors, occurrences which to the court constitute an immediate and ongoing danger to the Petitioner, or any member of the Petitioner's family or household." (Family Court Act § 827[a][vii]).
F.C.A. § 842-a [2](a) provides that "[w]henever an order of protection is issued pursuant to section eight hundred forty-one of this part [ ]:
"[T]he court shall revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender pursuant to subparagraph f of paragraph one of subdivision a of section 265.20 and subdivision six of section 400.05 of the penal law, of any or all firearms owned or possessed where the court finds that the conduct which resulted in the issuance of the order of protection involved (i) the infliction of physical injury, as defined in subdivision nine of section 10.00 of the penal law "
F.C.A. § 842-a [4] states that "[a]ny suspension order issued pursuant to this section shall remain in effect for the duration of the temporary order of protection or order of protection, unless modified or vacated by the court."
N.Y.P.L. § 10.00 defines physical injury as impairment of physical condition or substantial pain.
Legal Analysis
Courts have held that a Respondent's firearm license shall be revoked for the period of the order of protection after a court has issued an order of protection due to physical injury caused by the Respondent. (See Toneatti v Schiavone, 698 NYS2d 690, [2d Dept 1999]; Young v Young, 721 NYS2d 789, [2d Dept 2001]; Matter of Schoenl v Schoenl, 136 AD3d 1361 [4th Dept 2016]; Matter of Ellen Z. v Isaac D., 47 Misc 3d 389, [Family Ct, Queens County 2015]; Matter of Aaron H. v James G., 35 Misc 3d 1219(A) [Family Ct, NY County 2012]).
In the underlying family offense matter, the Court found that aggravating circumstances were present and supported by a preponderance of the evidence based on the two incidents of assault when the Petitioner sustained painful physical injury to her arm and leg/thigh as a result of having been kicked, grabbed, pushed and hit by the Respondent. The pictures entered into evidence depicted black and blue bruises on the Petitioner's leg/thigh and arm. (See Coumba F. v Mamdou D., 102 AD3d 634, [1st Dept 2013], where the Court found aggravating circumstances where a mother sustained a physical injury, i.e., back pain and bruises after the father struck her.) The Petitioner credibly testified that she had pain and bruising. The Court found that the pictures were very compelling evidence in proving that the Petitioner sustained physical injury inflicted on her by the Respondent.
During the family offense fact finding hearing the Petitioner submitted four exhibits. Petitioner's #1 — right arm bruise sustained during the May 2013 incident Petitioner's #2 — right arm bruise sustained during the May 2013 incident
The pictures depict graphic black and blue bruises on the Petitioner's arm and leg/thigh. She testified that she took the pictures on her iPod shortly after the May and June 2013 assaults by the Respondent. She emailed the pictures to herself and developed them in July 2013 after arriving in New York. They were admitted into evidence over the objection of Ms. Jones-Thomas. The Court finds that the Petitioner properly authenticated the photographs for Exhibits 1 and 2. "A photograph is properly authenticated by testimony of a person familiar with the object portrayed therein that it is a correct representation of its contents." (People v Keith, 240 AD2d 967, 969 [3d Dept 1997]). Petitioner's #3 - photograph depicting black and blue bruises of Petitioner's thigh sustained during the June 24, 2013 incident Petitioner's #4 - photograph depicting bruise sustained during the June 24, 2013 incident
The Court, as finder of fact, determines the weight of the evidence in the underlying family offense decision. The Court determined that all exhibits were extremely credible. Petitioner's Exhibits #1-4 were given significant weight in the Petitioner's burden of proving the allegations in her case.
In this decision, the Court is not re-litigating the underlying family offense petition. It has issued its rulings and provided a disposition. This decision is part of its disposition as required under the Family Court Act Section 842-a.
Testimony in the underlying family offense proceeding
The Petitioner testified about two incidents of domestic violence that caused physical injury to her: 1) June 24, 2013 — when the Respondent allegedly shoved Petitioner and 2) May 6-10, 2013 — when the Respondent allegedly threatened the Petitioner with a firearm and physically assaulted her. This Court credited the testimony of the Petitioner about the physical assault and injury by the Respondent during the fact-finding hearing for the family offense petition.
Credibility Assessment:
The hearing Court "has the best vantage point for evaluating the credibility of the witness[.]" (In re Everett C. v Oneida P., 61 AD3d 489 [1st Dept 2009], finding that the family court had properly dismissed the family offense petition wherein the Petitioner "failed to establish by a preponderance of the evidence that Respondent had committed acts warranting an order of protection in Petitioner's favor, particularly in light of the court's finding that none of the testimony was especially credible." [emphasis added]; See also Peter G. v Karleen K., 51 AD3d 541 [1st Dept 2008], where the family court properly dismissed the petition where the evidence failed to establish by a fair preponderance of the evidence that Respondent committed acts that would constitute a family offense; In the Matter of Barnes v Barnes, 54 AD3d 755 [2d Dept 2008], where the family court's determination that the Petitioner failed to meet her burden of proof based solely upon its assessment of the credibility of the parties was supported by the record [emphasis added]; King v Flowers, 13 AD3d 629 [2d Dept 2004], where the family court properly dismissed the family offense petition where Petitioner failed to establish by a preponderance of the evidence that the Respondent committed acts constituting a cognizable family offense.)
The Court had the unique opportunity to assess the credibility of the Petitioner and the Respondent in the family offense proceedings regarding whether the Respondent caused physical injury to the Petitioner. The Court observed both parties testify and was able to consider their sincerity, character and temperament, and was also able to assess their truthfulness based upon their demeanor and the scope of their responses to questions, both on direct examination and on cross-examination. The Court also had the unique opportunity to observe each party during the testimony of the other, which is critical when the Court is charged with making credibility determinations. The Court must consider the relationship between the parties, the history of the parties' relationship and any other facts that affect credibility. The Court also assessed the credibility of the Respondent during the hearing to revoke his firearm license.
Petitioner's Testimony
The Petitioner testified that the incident happened during the week of May 6 — May 10, 2013. He threw the plate on floor and, grabbed her right middle of arm, held her tight and hit her arm with his fist. She had pain as a result of the Respondent's assault for 3-4 weeks. She received bruises after the Respondent kicked her left leg right below the knee twice with his work shoes. The bruise lasted two to four months. She felt pain for two weeks. (See transcript 6/5/14, page 24).
During the June 24, 2013 incident the Respondent didn't like food that the Petitioner cooked. He threw the food at her. "He pushed me on the back using his hands, and then I hurt the left side of my thigh with the corner of the table." (See transcript 6/7/14, Page 27, lines 15-17). "He was very angry, like a lunatic. I felt very frightened. I thought that he might do something worse." (See Transcript 6/7/14, Page 33, lines 17-22).
Respondent's Testimony
In the underlying family offense matter, the Respondent's essential argument was that the Petitioner used him to come to the United States and obtain U.S. immigration status. He denied all allegations that he assaulted the Petitioner in May 2013 and June 24, 2013. He did not offer any testimony or alternatives regarding Exhibits #1-4 depicting bruises on the Petitioner's arm and thigh. The Court did not credit the Respondent's testimony that the Petitioner kicked him first during the May 2013 incident because he was watching television.
Findings of Fact: Underlying Family Offense Matter
This Court found that the Petitioner established by the fair preponderance of the evidence that the Respondent's behavior constituted the following family offenses: harassment in the second degree, assault in the second degree and menacing in the second and third degrees.
Assault in the Third Degree
A person is guilty of assault in the third degree when "[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person" (Penal Law §120.00 [1]).
Harassment in the Second Degree
"A person is guilty of harassment in the second degree when, "with intent to harass, annoy or alarm another person [h]e subjects such other person to physical contact, or attempts or threatens to do the same." (Penal Law § 240.26[1]; see e.g. McGuffog v Ginsberg, 266 AD2d 136 [1st Dept 1999]). "A single incident is legally sufficient to support a finding of harassment in the second degree." (See Matter of Victor S. v Kareem J.S., 104 AD3d 405 [1st Dept 2013]).
Menacing in the third degree
Menacing in the third degree requires that the Respondent, by physical menace, intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury." (See NYPL § 120.15). "Verbal threats do not establish the offense; rather, some physical act is required". (People v Vega, 46 Misc 3d 144(A) [2nd Dept 2015] [Citations omitted]).
Menacing in the second degree
The statute states that "A person is guilty of menacing in the second degree when: 1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or 2. He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear or physical injury, serious physical injury or death; [...]" (NYPL § 120.14)
The Court found that the Respondent's physical assaults against the Petitioner on June 24, 2013 and in May 2013 constituted assault in the third degree, menacing in the second and third degrees and harassment in the second degree. The Court found that the Respondent actions evinced his intent to cause physical injury to the Respondent when he kicked her with his work boot, grabbed her arm and caused the Petitioner to suffer physical injuries to her arm, leg and thigh. She sustained black and blue bruises to her arms and legs. See Petitioner's exhibits #1-4. The pictures display substantial and graphic black and blue physical injuries to the Petitioner. The Respondent committed acts that constitute menacing in the second and third degree in that he intentionally placed the Petitioner in fear of physical injury. Additionally, he engaged in a course of conduct by assaulting the Petitioner over a period of time and repeatedly committed acts over a period of time— May 2013 through June 2103 — intentionally placing the Petitioner in reasonable fear of physical injury.
This Court found that the Respondent inflicted physical injury against the Petitioner, as defined in the New York Penal Law §10.00, in the underlying family offense matter. A five- year order of protection was issued after aggravating circumstances were found by the Court. Aggravating circumstances were found due to the physical injury to the Petitioner caused by the Respondent's actions. The Petitioner's Exhibits #1-4 depicted the physical injury in the forms of bruises to the Petitioner. The Petitioner credibly testified about two incidents of assault when the Petitioner sustained painful physical injury to her arm and leg/thigh as a result of having been kicked, grabbed, pushed and hit by the Respondent. The pictures entered into evidence depicted black and blue bruises on the Petitioner's leg/thigh and arm. The Court credited the Petitioner's testimony and made a finding that the Respondent committed an assault against the Petitioner causing her physical injury.
The Court credits the testimony of the Respondent in the license revocation hearing and the parties in the underlying family offense fact finding hearing. Under FCA § 842-a [2] [a], this Court is required to revoke the Respondent's license to carry, possess, repair or dispose of a firearm from December 22, 2016 to March 29, 2021. This Court also finds that the Respondent is ineligible for a firearm license from December 22, 2016 to March 29, 2021.
Conclusion
And the matter having duly come on for a hearing, and the Court having made examination and inquiry into the facts and circumstances of the persons involved,
IT IS HEREBY:
ORDERED the final order of protection issued on 3/29/16 is amended effective 12/22/16 to include the Respondent's revocation and ineligibility of the firearm license as indicated below; and it is
ORDERED that the Respondent's license to carry, possess, repair or dispose of a firearm is hereby revoked from December 22, 2016 to March 29, 2021; and it is further
ORDERED that from December 22, 2016 to March 29, 2021, the Respondent is ineligible for a license to carry, possess, repair or dispose of a firearm due to the Respondent's conduct which caused physical injury to the Petitioner. Dated: December 22, 2016 Hon. Tracey A. Bing Judge of the Family Court