Opinion
03-24-2016
In re CHIGUSA HOSONO D., Petitioner–Respondent, v. JASON GEORGE D., Respondent–Appellant.
Daniel R. Katz, New York, for appellant. Andrew J. Baer, New York, for respondent. George E. Reed, Jr., White Plains, attorney for the child.
Daniel R. Katz, New York, for appellant.
Andrew J. Baer, New York, for respondent.
George E. Reed, Jr., White Plains, attorney for the child.
TOM, J.P., FRIEDMAN, SAXE, RICHTER, JJ.
Order of protection, Family Court, New York County (Marva A. Burnett, Referee), entered on or about November 21, 2014, which, upon a fact-finding determination that respondent committed the family offenses of assault in the second degree, harassment in the second degree and disorderly conduct in the second degree, directed respondent to stay away from petitioner for a period of two years, unanimously modified, on the law and the facts, to vacate the findings of assault in the second degree and disorderly conduct in the second degree, and otherwise affirmed, without costs.
The Referee erred in determining that respondent's actions constituted the family offense of assault in the second degree, because there is no evidence in the record that he caused petitioner to suffer a serious physical injury (see Penal Law § 120.05[1], Penal Law § 10.00[10] ; and see People v. Snipes, 112 A.D.2d 810, 811, 492 N.Y.S.2d 401 [1st Dept.1985] ). Nor does the record establish that respondent caused petitioner to suffer physical injury which would support a finding of assault in the third degree (see Penal Law §§ 120.00[1] ; 10.00[9] ).
The Referee also erred in determining that respondent's actions constituted the family offense of disorderly conduct in the second degree, since such an offense is not enumerated as a family offense as defined by Family Court Act § 812(1). Nor did respondent's actions constitute the enumerated family offense of disorderly conduct, inasmuch as a preponderance of the record evidence does not support an inference that, during either of the incidents described by petitioner in her testimony, respondent intended to cause a public inconvenience, annoyance or alarm, or that his conduct in the private residence recklessly created such a risk (see Matter of Cassie v. Cassie, 109 A.D.3d 337, 340–344, 969 N.Y.S.2d 537 [2d Dept.2013] ; Matter of Janice M. v. Terrance J., 96 A.D.3d 482, 945 N.Y.S.2d 693 [1st Dept.2012] ).
However, a preponderance of the evidence supports the finding that respondent's actions during both incidents constituted the family offense of harassment in the second degree, since his conduct evinced an intent to harass, annoy or alarm petitioner (see Family Ct. Act § 832 ). Petitioner testified that during one incident, respondent grabbed her by the neck, dragged her into the kitchen, pushed her to the wall, called her an obscene name, and threatened to punch her in the face (see McGuffog v. Ginsberg, 266 A.D.2d 136, 699 N.Y.S.2d 26 [1st Dept.1999] ). She testified that during the second incident, respondent hit her on the top of her head with his fist (see Matter of Sheureka L. v. Sidney S., 100 A.D.3d 547, 955 N.Y.S.2d 302 [1st Dept.2012], lv. denied 20 N.Y.3d 858, 2013 WL 452286 [2013] ). The Referee's credibility determinations are supported by the record, and there is no basis to disturb them (see Matter of Lisa S. v. William V., 95 A.D.3d 666, 943 N.Y.S.2d 886 [1st Dept.2012] ). The issuance of a two-year order of protection was appropriate "because it will likely be helpful in eradicating the root of the family disturbance" (Matter of Oksoon K. v. Young K., 115 A.D.3d 486, 487, 981 N.Y.S.2d 423 [1st Dept.2014], lv. denied 24 N.Y.3d 902, 2014 WL 4454914 [2014] ).
Respondent has not preserved his contention that the Referee should have dismissed the petition because it violated his right to due process by failing to delineate a sufficiently narrow time frame for the alleged offenses (see Matter of Erica D. [Maria D.], 80 A.D.3d 423, 424, 915 N.Y.S.2d 46 [1st Dept.2011], lv. denied 16 N.Y.3d 708, 2011 WL 1160593 [2011] ; Matter of Tiffany A., 295 A.D.2d 288, 289, 744 N.Y.S.2d 669 [1st Dept.2002] ). If this Court were to review the issue in the interest of justice, we would find that the petition sufficiently identified places and times when the alleged family offenses were committed (see Matter of Little v. Renz, 90 A.D.3d 757, 757–758, 934 N.Y.S.2d 331 [2d Dept.2011] ).