Opinion
2013-08-28
In the Matter of Mercedes KONDOR, respondent, v. Zsolt KONDOR, appellant.
Anthony Augustus, Jamaica, N.Y., for appellant. Yisroel Schulman, New York, N.Y. (Amanda Beltz of counsel), for respondent.
Anthony Augustus, Jamaica, N.Y., for appellant. Yisroel Schulman, New York, N.Y. (Amanda Beltz of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In a family offense proceeding pursuant to Family Court Act article 8, Zsolt Kondor appeals from an order of protection of the Family Court, Queens County (Jolly, J.), dated July 3, 2012, which, after a hearing, and upon a finding that he committed certain family offenses within the meaning of Family Court Act § 812, directed him, inter alia, to stay away from the petitioner until and including July 3, 2017.
ORDERED that the order of protection is modified, on the law, by adding thereto a decretal paragraph finding that aggravating circumstances exist, including the use of a dangerous instrument by Zsolt Kondor against the petitioner; as so modified, the order of protection is affirmed, without costs or disbursements.
The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record ( see Matter of Shields v. Brown, 107 A.D.3d 1005, 966 N.Y.S.2d 900;Matter of Alicea v. Alfano, 83 A.D.3d 1054, 921 N.Y.S.2d 572;Matter of Creighton v. Whitmore, 71 A.D.3d 1141, 898 N.Y.S.2d 585). Here, the evidence adduced at the hearing established, by a fair preponderance of the evidence, that the appellant committed the family offenses of attempted assault in the second degree, disorderly conduct, and harassment in the second degree, warranting the issuance of an order of protection ( seeFamily Ct. Act §§ 812[1], 832; Penal Law §§ 110.00, 120.05[2]; 240.20[1]; 240.26[3]; Matter of Shields v. Brown, 107 A.D.3d at 1006, 966 N.Y.S.2d 900;Matter of Del Canto v. Behrens, 95 A.D.3d 1211, 1211–1212, 945 N.Y.S.2d 148;Matter of Brito v. Vasquez, 93 A.D.3d 842, 843, 941 N.Y.S.2d 634;Matter of Harry v. Harry, 85 A.D.3d 790, 791, 924 N.Y.S.2d 816).
To issue an order of protection with a duration exceeding two years on the ground of aggravating circumstances, the Family Court must set forth “on the record and upon the order of protection” a finding of such aggravating circumstances as defined in Family Court Act § 827(a)(vii) (Family Ct. Act § 842). The statutory definition of “aggravating circumstances” includes five distinct situations, set forth in the disjunctive: (1) “physical injury or serious physical injury to the petitioner caused by the respondent,” (2) “the use of a dangerous instrument against the petitioner by the respondent,” (3) “a history of repeated violations of prior orders of protection by the respondent,” (4) “prior convictions for crimes against the petitioner by the respondent,” “or” (5) “the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and 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 Ct. Act § 827[a][vii]; see e.g. Matter of Harry v. Harry, 85 A.D.3d at 791, 924 N.Y.S.2d 816 [finding aggravating circumstances based on “violent and harassing behavior in the presence of [the petitioner] which constitutes an immediate and ongoing danger to her”]; Matter of Guernsey v. Guernsey, 37 A.D.3d 989, 990, 830 N.Y.S.2d 801 [finding aggravating circumstances based on “a history of repeated violations of prior orders of protection by the respondent”]; cf. Matter of Pereira–Marshall v. Marshall, 48 A.D.3d 574, 575, 852 N.Y.S.2d 233 [the Family Court's finding of aggravating circumstances was not supported by the record where there was no evidence to support the allegation of the use of a dangerous instrument] ).
A finding of aggravating circumstances under the fifth situation set forth in Family Ct. Act § 827(a)(vii) must be supported by a finding of “an immediate and ongoing danger to the petitioner, or any member of the petitioner's family or household” (Family Ct. Act § 827[a][vii]; see Matter of Clarke–Golding v. Golding, 101 A.D.3d 1117, 1118, 956 N.Y.S.2d 553;Matter of Harry v. Harry, 85 A.D.3d at 791, 924 N.Y.S.2d 816). To the extent that certain language in Matter of Clarke–Golding v. Golding, 101 A.D.3d at 1118, 956 N.Y.S.2d 553 might suggest that the “immediate and ongoing danger” requirement pertains to the other four situations enumerated in Family Court Act § 827(a)(vii) as well, it is not to be construed as such. Where the aggravating circumstances involve the use of a dangerous instrument ( cf.Penal Law § 10.00[13]; People v. Warren, 98 A.D.3d 634, 635–636, 949 N.Y.S.2d 496), the “immediate and ongoing danger” requirement does not apply (Family Ct. Act § 827[a][vii]; see Matter of Pereira–Marshall v. Marshall, 48 A.D.3d at 575, 852 N.Y.S.2d 233).
Here, the Family Court's finding that aggravating circumstances were present was supported by the record ( seeFamily Court Act 827[a][vii]; Matter of Harry v. Harry, 85 A.D.3d at 791, 924 N.Y.S.2d 816;Matter of Charles v. Charles, 21 A.D.3d 487, 799 N.Y.S.2d 822). Therefore, we modify the order of protection to include this finding in compliance with Family Court Act § 842 ( see Matter of Harry v. Harry, 85 A.D.3d at 791, 924 N.Y.S.2d 816;Matter of Charles v. Charles, 21 A.D.3d at 488, 799 N.Y.S.2d 822;Matter of Flascher v. Flascher, 298 A.D.2d 393, 751 N.Y.S.2d 396; Matter of Reilly v. Reilly, 254 A.D.2d 361, 688 N.Y.S.2d 153).