Opinion
No. O–XXXXXX–11.
2011-12-21
MELISSA H., Petitioner, v. SHAMEER S., Respondent.
JAMES E. D'AUGUSTE, J.
A petition under Article 8 of the Family Court Act having been filed in this Court;
and Melissa H., having appeared with counsel; and Shameer S., having waived his right to an attorney; and the matter having duly come on for fact-finding before this Court on November 1, 2011.
The Court finds that after hearing the proofs and testimony offered in relation to the case, the respondent committed acts constituting the family offense of aggravated harassment in the second degree and assault in the second degree against the petitioner.
On September 23, 2011, Melissa H. filed a family offense petition alleging that the Shameer S. went to her home at 2:00 a.m. on September 19, 2011 and attempted to open the living room and kitchen windows. The petition further alleges that the respondent let the air out of her car tires, opened her car hood and attempted to “mess” with the engine. When she went outside to ask what he was doing to her car, Melissa H. claims that Shameer S. began yelling at her, grabbed her by the arms and shoved her against a brick wall. Despite insisting that he leave immediately, Shameer S. pushed himself into the apartment, woke up the children and carried the three-year-old child into the living room screaming; when Melissa H. took the child from the respondent, she alleges that he went into the kitchen, grabbed a knife and pointed it at her. As Melissa H. ran towards the children's bedroom to get the one-year-old child, Shameer S. allegedly put the knife down, stole her purse and her friend's cell phone and left the residence. Ten minutes later, Melissa H. claims that Shameer S. returned to the home and began to yell at her through an open window while she held their daughter. He then proceeded to spit in her face. After he finally left the residence, Shameer S. continued to call Melissa H. throughout the night. At that point, she called the police and reported the incident. A criminal court matter is also pending in this matter stemming from the same alleged incident.
At the fact-finding hearing, the Court allocuted the respondent about his right to an attorney. Based on the information provided by Shameer S. regarding his financial status, he did not qualify for assigned counsel. The Court stated that it could revisit the issue of assigned counsel with the submission of financial documentation. When the Court asked the respondent if he wanted an adjournment to bring financial information and/or to retain counsel at his own expense, he unequivocally stated “No, Sir.” In fact, upon learning that a criminal court matter was pending, the Court expressed its concern to the respondent about making incriminating comments that may be used against him in the criminal court matter and reiterated his fifth amendment right. Indeed, when the respondent asked to speak, the Court advised him once again that he may want to reconsider his request since anything he says could be used against him in the pending criminal case. Shameer S. replied, “I understand, Sir” and insisted upon making a statement to the Court. Given that the respondent wished to proceed without counsel, the Court proceeded to fact-finding.
Shameer S. stated that he arrived at “his premise” on September 19, 2011 at 2:00 a.m. after work whereupon he found “someone else in the apartment” with Melissa H. and heard the children screaming. Notably, Shameer S. Referred to the apartment as his place of residence; however, he later admitted that he has not stayed at that apartment since Labor Day—approximately two months before the date in question—because the Melissa H. had changed the locks. Shameer S. denies engaging in a physical fight with Melissa H. or the third-party and denies grabbing a knife from the kitchen. Shameer S. states that he was merely concerned about the safety of his children. Shameer S. further testified that he left the apartment but called Melissa H. to find out who the third-party was and whether the children were safe. Shameer S. claims that the mother asked him to return to the apartment to talk in person about the situation; he refused. In response to the Court's clarifying question, Shameer S. stated that he had been to the apartment two days prior, as well as many times before that, in an effort to see his children after work. Shameer S. unequivocally denies the allegations in the petition and further asserts that Melissa H. has been abusive towards him.
Conversely, Melissa H. stated that on September 19, 2011 Shameer S. banged on her home's windows at 2:00 a.m. and then began tampering with her car. Melissa H. further testified to the allegations as described in the petition set forth above. Melissa H. further added that the children were sick at the time and she had to bring them to the hospital later that night due to their ailments. Finally, Melissa H. represented to the Court that Shameer S. is not consistent in visiting the children and often disappears for weeks at a time.
The Court finds that Melissa H. has demonstrated by a fair preponderance of the credible evidence that Shameer S. committed a family offense against her. See Everett C. v. Oneida P., 61 AD3d 489 (1st Dep't 2009); Banks v. Penney–Richards, 68 AD3d 419 (1st Dep't 2009); Peter G. v. Karleen K., 51 AD3d 541 (1st Dep't 2008); Barnes v. Barnes, 54 AD3d 755 (2d Dep't 2008); Topper v.. Topper, 271 A.D.2d 613 (2d Dep't 2000). Melissa H. credibly testified about the acts that occurred on September 19, 2011 with the sole exception that the Court does not credit her testimony alleging that Shameer S. grabbed a knife and held it to her. Specifically, the Court finds that Shameer S. showed up at Melissa H.'s apartment at 2:00 a.m., banged on the windows, caused damage to her car, physically grabbed petitioner's arms causing bruising and spit in her face. The Court does not credit the Shameer S.'s testimony in any way, including his assertion that he was merely going home after completing work to sleep given his admission that he has been sleeping at his parent's house for the last two months because the petitioner would not open the apartment door. Given the totality of the circumstances, the Court likewise finds no legitimate basis upon which to credit Shameer S.'s rationalization for going to the Melissa H.'s residence at 2:00 a.m. to see his children. Shameer S.'s entire account of the events is laden with insincerity.
Based upon the foregoing, IT IS HEREBY ORDERED that the petition is GRANTED based on a fair preponderance of the credible evidence that the respondent committed acts constituting the family offenses of aggravated harassment in the second degree and assault in the second degree against the petitioner.
And the Court further finds the following aggravating circumstances: Respondent physically injured the petitioner and exposed the petitioner, a family and household member, to physical injury and like incidents, behaviors, and/or occurrences constituting immediate ongoing danger to her and her health.
ORDERED that the respondent shall for a period of five years observe the conditions of behavior specified in the Order of Protection entered and annexed to and made a part of this Order.