Opinion
06-02-2016
In the Matter of ROMENA Q., Respondent, v. EDWIN Q., Appellant.
Ivy M. Schildkraut, Monticello, for appellant. Cliff Gordon, Monticello, for respondent. Jane Bloom, Monticello, attorney for the child.
Ivy M. Schildkraut, Monticello, for appellant.
Cliff Gordon, Monticello, for respondent.
Jane Bloom, Monticello, attorney for the child.
Before: GARRY, J.P., EGAN JR., LYNCH, CLARK and MULVEY, JJ.
GARRY, J.P. Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered March 6, 2015, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 8, for an order of protection.
Petitioner and respondent were married and resided together with respondent's daughter until the summer of 2014. At that time, the parties separated and respondent moved out of the marital home. In September 2014, petitioner commenced this proceeding alleging that respondent had committed certain family offenses during an incident at the home. Following a fact-finding hearing, Family Court found that respondent had committed the family offense of criminal mischief in the fourth degree and issued a two-year order of protection in favor of petitioner. Respondent appeals.
Petitioner also commenced a custody proceeding that was the subject of a prior appeal (Matter of
A petitioner in a family offense proceeding must establish that the offense has been committed by “a fair preponderance of the evidence” (Family Ct. Act § 832 ; see Matter of Elizabeth X. v. Irving Y., 132 A.D.3d 1100, 1101, 19 N.Y.S.3d 114 [2015] ; Matter of Lynn TT. v. Joseph O., 129 A.D.3d 1129, 1130, 10 N.Y.S.3d 702 [2015] ). As is relevant here, the offense of criminal mischief in the fourth degree required proof that, “having no right to do so nor any reasonable ground to believe that he ... [had] such right, [respondent] ... [i]ntentionally damage[d] property of another person” (Penal Law § 145.00 ).
At the fact-finding hearing, Family Court heard the testimony of petitioner, respondent and the police officer who responded to the incident. The testimony established that respondent had returned to the former marital residence, a rental property, to pick up his daughter and retrieve his belongings. Petitioner testified that, upon arriving and finding the front door locked, respondent began insulting petitioner and banging and pounding on the door, ultimately causing damage to the door frame, lock and screen door. Petitioner called the police. The officer who responded testified that, upon his arrival, he observed damage to the front door, including cracks and damage to the lock. Respondent testified that he was not aware of causing damage to the door. In his testimony, respondent described approaching the front door of the residence and observing petitioner inside with some of his belongings. Upon attempting to open the door, he found that it was locked, and, nevertheless, he continued to “push on the door,” demanding that petitioner give him his belongings.
Family Court sits in a superior position to observe and evaluate the testimony and, thus, “ ‘its determinations regarding the credibility of witnesses are entitled to great weight on appeal’ ” (Matter of Christina KK. v. Kathleen LL., 119 A.D.3d 1000, 1001, 990 N.Y.S.2d 100 [2014], quoting Matter of Shana SS. v. Jeremy TT., 111 A.D.3d 1090, 1091, 976 N.Y.S.2d 252 [2013], lv. denied 22 N.Y.3d 862, 2014 WL 642795 [2014] ; see Matter of Mauzy v. Mauzy, 40 A.D.3d 1147, 1148, 834 N.Y.S.2d 722 [2007] ). Upon review of the record, we agree that the evidence was sufficient to establish that respondent committed the family offense of criminal mischief in the fourth degree by intentionally causing damage to the front door of the residence. Although respondent denied intending to damage the door, “[i]ntent may be inferred from the act itself, from a [respondent's] conduct and statements, and from the surrounding circumstances” (People v. Hodges, 66 A.D.3d 1228, 1230, 888 N.Y.S.2d 224 [2009], lv. denied 13 N.Y.3d 939, 895 N.Y.S.2d 330, 922 N.E.2d 919 [2010] ; see
Matter of Carlos M., 32 A.D.3d 686, 687, 820 N.Y.S.2d 581 [2006] ). The court was free to reject respondent's explanation (see Matter of Shana SS. v. Jeremy TT., 111 A.D.3d at 1092, 976 N.Y.S.2d 252 ; Matter of Jenna T. v. Mark U., 82 A.D.3d 1512, 1513, 920 N.Y.S.2d 447 [2011] ), and we find no error in the determination.
ORDERED that the order is affirmed, without costs.
EGAN JR., LYNCH, CLARK and MULVEY, JJ., concur.
Romena Q. v. Edwin Q., 133 A.D.3d 1148, 21 N.Y.S.3d 409 [2015] ).