Opinion
2018–10613 Docket No. O–25355–16
06-12-2019
In the Matter of Adrienne RICHARDSON, Appellant, v. Everly BROWN, Respondent.
David Laniado, Cedarhurst, NY, for appellant. Joshua R. Katz, Kew Gardens, NY, for respondent.
David Laniado, Cedarhurst, NY, for appellant.
Joshua R. Katz, Kew Gardens, NY, for respondent.
CHERYL E. CHAMBERS, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 8, the petitioner appeals from an order of the Family Court, Queens County (Marilyn L. Zarrello, Ct. Atty. Ref.), dated August 13, 2018. The order, after a hearing, inter alia, in effect, denied the family offense petition and dismissed the proceeding.
ORDERED that the order is modified, on the law and the facts, by deleting the provision thereof denying that branch of the petition which was based on an allegation that the respondent committed an act constituting the family offense of harassment in the second degree based on a text message sent by the respondent to the petitioner on October 23, 2016, and substituting therefor a provision granting that branch of the petition; as so modified, the order is affirmed, with costs to petitioner, and the matter is remitted to the Family Court, Queens County, for the entry of an appropriate order of protection.
The parties, who were married in 1999, reside on separate floors of the marital residence, along with their two minor children. The petitioner filed a family offense petition dated December 30, 2016, in the Family Court alleging that the respondent committed the family offenses of disorderly conduct and harassment in the second degree. After a hearing, the court determined that the petitioner failed to establish by a preponderance of the evidence that the respondent committed a family offense against the petitioner, and, in effect, denied the petition and dismissed the proceeding.
" ‘In a family offense proceeding, the petitioner has the burden of establishing, by a fair preponderance of the evidence, that the charged conduct was committed as alleged in the petition’ " ( Matter of Bah v. Bah, 112 A.D.3d 921, 921–922, 978 N.Y.S.2d 301, quoting Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537 [internal quotation marks omitted]; see Matter of Johnson v. Johnson, 146 A.D.3d 956, 956, 45 N.Y.S.3d 549 ; Matter of Kiani v. Kiani, 134 A.D.3d 1036, 1037, 22 N.Y.S.3d 520 ; Matter of Hodiantov v. Aronov, 110 A.D.3d 881, 882, 973 N.Y.S.2d 703 ). " ‘The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal unless clearly unsupported by the record’ " ( Matter of Fruchthandler v. Fruchthandler, 161 A.D.3d 1151, 1152, 78 N.Y.S.3d 214, quoting M.B. v. L.T., 152 A.D.3d 475, 476, 58 N.Y.S.3d 491 ; see Matter of Messana v. Messana, 115 A.D.3d 860, 861, 982 N.Y.S.2d 346 ; Matter of Saldivar v. Cabrera, 109 A.D.3d 831, 832, 971 N.Y.S.2d 310 ).
Contrary to the Family Court's determination, the petitioner established by a fair preponderance of the evidence that the respondent committed the family offense of harassment in the second degree based on a text message sent by him to the petitioner on October 23, 2016. A person is guilty of harassment in the second degree when, "with intent to harass, annoy or alarm another person[,] he or she ... subjects such person to physical contact, or attempts or threatens to do the same" ( Penal Law § 240.26[1] ). The intent element may be inferred from the surrounding circumstances (see Matter of Putnam v. Jenney , 168 A.D.3d 1155, 1155, 90 N.Y.S.3d 678 ; Matter of Washington v. Washington , 158 A.D.3d 717, 718, 70 N.Y.S.3d 560 ). Furthermore, "[a] single incident is legally sufficient to support a finding of harassment in the second degree" ( Matter of Polizzi v. McCrea , 129 A.D.3d 733, 734, 10 N.Y.S.3d 568 [internal quotation marks omitted] ). Here, the text message, which was indisputably sent by the respondent to the petitioner, contained a genuine threat of physical harm, and the evidence adduced at the hearing adequately demonstrated that it was reasonable for the petitioner to take the threat seriously since it was sent during a period of extreme marital discord. The respondent's intent to commit harassment in the second degree is properly inferred from the surrounding circumstances (see Penal Law § 240.26[1] ; Matter of Mullings v. Mullings , 168 A.D.3d 850, 851, 89 N.Y.S.3d 905 ; Matter of Washington v. Washington , 158 A.D.3d 717, 718, 70 N.Y.S.3d 560 ; Matter of Salazar v. Melendez , 97 A.D.3d 754, 755, 948 N.Y.S.2d 673 ; People v. Vega , 95 A.D.3d 773, 945 N.Y.S.2d 288 ; cf. People v. Dietze , 75 N.Y.2d 47, 51, 550 N.Y.S.2d 595, 549 N.E.2d 1166 ; Paruchuri v. Akil , 156 A.D.3d 712, 714, 66 N.Y.S.3d 326 ). Accordingly, the court should have granted that branch of the petition which was based on the allegation that the respondent committed an act constituting the family offense of harassment in the second degree based on that text message.
Under the circumstances of this case, the issuance of an order of protection directing the respondent to refrain from harassment and threats against the petitioner is appropriate to advance the purpose of, among other reasons, ending the family disruption (see Family Ct Act §§ 812[2][b] ; 842; see generally Matter of Doris M. v. Yarenis P., 161 A.D.3d 502, 503, 76 N.Y.S.3d 47 ; Matter of Shank v. Shank, 155 A.D.3d 875, 877, 63 N.Y.S.3d 719 ; Matter of Millie S. v. Thomas S., 60 Misc.3d 493, 499–500, 77 N.Y.S.3d 829 [Fam. Ct., Kings County). Accordingly, we remit the matter to the Family Court, Queens County, for the entry of an appropriate order of protection.
The petitioner's remaining contentions are without merit
CHAMBERS, J.P., COHEN, DUFFY and IANNACCI, JJ., concur.