Opinion
12827 12827A Dkt. No. V-16967/18, O-07566/18 Case No. 2019-3687
01-12-2021
In the Matter of NICOLE W., Petitioner–Respondent v. LOUIS T., Respondent–Appellant.
The Law Offices of Salihah R. Denman, PLLC, New York (Salihah R. Denman of counsel), for appellant. Cahill Gordon & Reindel LLP, New York (Tamara M. O'Flaherty of counsel), for respondent. Karen Freedman, Lawyers for Children Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
The Law Offices of Salihah R. Denman, PLLC, New York (Salihah R. Denman of counsel), for appellant.
Cahill Gordon & Reindel LLP, New York (Tamara M. O'Flaherty of counsel), for respondent.
Karen Freedman, Lawyers for Children Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Renwick, J.P., Kern, Mazzarelli, Kennedy, Shulman, JJ.
Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about April 15, 2019, which, upon a fact-finding determination that respondent committed the family offenses of assault in the third degree, menacing in the third degree, strangulation in the second degree, and criminal mischief in the fourth degree, granted a five-year order of protection in favor of petitioner, unanimously affirmed, without costs. Order, same court and Judge, entered on or about April 12, 2019, which granted petitioner mother sole legal and physical custody of the subject child, unanimously affirmed, without costs.
A fair preponderance of the evidence supports the court's determination that respondent committed the family offenses of assault in the third degree, menacing in the third degree, strangulation in the second degree and criminal mischief in the fourth degree. Petitioner testified to physical altercations in which respondent choked her to the point of unconsciousness, pulled her around by her hair, shoved her, screamed at her, and punched her, injuring and scaring her, and testified that the child was present and in the zone of danger for at least two of the acts of violence (see Family Ct Act § 832 ; Penal Law §§ 120.00[1], 120.15 ; 121.12; see Matter of Antoinette T. v. Michael J.M., 157 A.D.3d 531, 531–532, 69 N.Y.S.3d 45 [1st Dept. 2018] ; and see Matter of Shirley D.-A. v. Gregory D.-A., 168 A.D.3d 635, 635, 93 N.Y.S.3d 28 [1st Dept. 2019] ; Matter of Rosa N. v. Luis F., 166 A.D.3d 451, 452, 87 N.Y.S.3d 155 [1st Dept. 2018] ). There exists no basis to disturb the court's credibility determinations (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ). Respondent also broke petitioner's cell phone, constituting the crime of criminal mischief ( Penal Law § 145.00[1] ; see e.g. Matter of Joan WW. v. Peter WW., 173 A.D.3d 1380, 104 N.Y.S.3d 358 [3d Dept. 2019] ).
The determination that aggravating circumstances existed to warrant the imposition of a five-year order of protection against respondent is supported by the record (see Family Ct Act § 827[a][vii] ; § 842; Matter of Angela C. v. Harris K., 102 A.D.3d 588, 589, 959 N.Y.S.2d 45 [1st Dept. 2013] ).
Respondent failed to preserve his argument that an evidentiary hearing was necessary with respect to the custody petition ( Matter of Gracie C. v. Nelson C., 118 A.D.3d 417, 987 N.Y.S.2d 333 [1st Dept. 2014] ), and we decline to review in the interest of justice. In any event, the Family Court properly determined that a further evidentiary hearing was not necessary because the court possessed sufficient information to render an informed decision on the child's best interests, based on petitioner's unrebutted testimony and because respondent made no further offer of proof that would have affected the outcome of the proceeding (see Matter of Fayona C. v. Christopher T., 103 A.D.3d 424, 959 N.Y.S.2d 183 [1st Dept. 2013] ; see also Matter of Tony R. v. Stephanie D., 146 A.D.3d 691, 45 N.Y.S.3d 463 [1st Dept. 2017] ; compare S.L. v. J.R., 27 N.Y.3d 558, 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 [2016] ).