Farideh P. v. Ahmed Q.

202 A.D.3d 1391

164 N.Y.S.3d 281

In the Matter of FARIDEH P., Respondent,

v.AHMED Q., Appellant.

530987

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 5, 2022

Decided and Entered: February 24, 2022

Tully Rinckey, PLLC, Syracuse (Maria V. Morse of counsel), for appellant.

Legal Aid Society of Northeastern New York, Amsterdam (Veronica C. Fallarino of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from an order of the Family Court of St. Lawrence County (Morris, J.), entered January 29, 2020, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 8, finding respondent to have committed family offenses, and issued an order of protection.

Petitioner and respondent were involved in a relationship and cohabitated from July 2018 until August 23, 2018 when petitioner moved out. Based upon incidents that allegedly occurred on that day, petitioner commenced this family offense proceeding in February 2019. Family Court issued petitioner a temporary order of protection on February 6, 2019. In June 2019, respondent filed a family offense cross petition and received a temporary order of protection. These same incidents led to a July 2019 eight-count indictment of respondent. In August 2019, petitioner moved to dismiss the cross petition and to vacate the temporary order of protection. Family Court partially granted the motion to dismiss but declined to vacate the temporary order of protection. On two occasions, respondent moved to adjourn the Family Court proceedings pending the conclusion of his criminal trial. Family Court denied both motions. At the close of the fact-finding hearing, respondent withdrew his cross petition, with prejudice. Thereafter, Family Court determined that respondent committed the family offenses of harassment in the second degree, criminal mischief in the fourth degree and menacing in the third degree and issued a one-year order of protection. Respondent appeals.

Respondent initially contends that Family Court abused its discretion when it denied his motions to adjourn the family offense proceeding until after the disposition of the criminal charges pending against him. "The grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of the trial court" ( Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006] [internal quotation marks and citation omitted]). Although it may have been a better practice to adjourn the family offense proceeding until the criminal action was resolved, we are unpersuaded that Family Court abused its discretion in denying respondent's motions for an adjournment (see Matter of Majesty M. [Brandy P.], 166 A.D.3d 775, 776, 89 N.Y.S.3d 96 [2018] ; Matter of Angel P. [Jose C.], 155 A.D.3d 569, 571, 65 N.Y.S.3d 495 [2017], lvs denied 30 N.Y.3d 911, 71 N.Y.S.3d 5, 94 N.E.3d 487, 2018 WL 827892 [2018]); Matter of Emily I., 50 A.D.3d 1181, 1181, 854 N.Y.S.2d 792 [2008], lv denied 10 N.Y.3d 712, 861 N.Y.S.2d 273, 891 N.E.2d 308 [2008] ).

Respondent next contends that petitioner failed to establish by a preponderance of the evidence that he committed a family offense. "Petitioner, as the party seeking an order of protection, bears the burden of proving by a fair preponderance of the evidence that respondent committed a family offense" ( Matter of Bedford v. Seeley, 176 A.D.3d 1338, 1339, 112 N.Y.S.3d 295 [2019] [citations omitted]). "Whether a family offense has been committed is a factual issue to be resolved by Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight" ( Matter of Dawn DD. v. James EE., 140 A.D.3d 1225, 1226, 33 N.Y.S.3d 499 [2016] [internal quotation marks, brackets and citations omitted], lv denied 28 N.Y.3d 903, 40 N.Y.S.3d 352, 63 N.E.3d 72 [2016] ).

As relevant here, "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: ... [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" ( Penal Law § 240.26[1] ). "A person is guilty of criminal mischief in the fourth degree when, having no right to do so nor any reasonable ground to believe that he or she has such right, he or she: ... [w]ith intent to prevent a person from communicating a request for emergency assistance, intentionally disables or removes telephonic ... equipment while that person: (a) is attempting to seek or is engaged in the process of seeking emergency assistance from police [or] law enforcement ...; or (b) is attempting to seek or is engaged in the process of seeking emergency assistance from another person or entity in order to protect himself, herself or a third person from imminent physical injury" ( Penal Law § 145.00[4] ). "A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury" ( Penal Law § 120.15 ). "The requisite intent ... may be inferred from the conduct itself or the surrounding circumstances" ( Matter of Lynn TT. v. Joseph O., 129 A.D.3d 1129, 1130, 10 N.Y.S.3d 702 [2015] [citations omitted]).

Petitioner testified that she was attending Clarkson University and was involved in a relationship and cohabitated with respondent in a camper from July 2018 until August 23, 2018. On that morning, as she was showering, respondent began shouting at petitioner. When she picked up her phone and threatened to call the police, he grabbed her wrist, forcibly took her phone and then took her picture while she was unclothed. He proceeded to close the windows and curtains in the camper, lock the door, and tell petitioner, "your a* * is mine, you're not going to leave here until I tell you." Petitioner was unable to leave the camper for several hours, but eventually convinced respondent to take her to her doctor's appointment. Respondent warned her not to mention anything to anyone and, before they left the camper, he used perfume to clean under petitioner's fingernails to "wipe evidence off." He refused to return her phone. She did not disclose anything to anyone at the doctor's office and left the appointment with respondent. Thereafter, she was able to convince respondent to take her to Clarkson University, where she exited his vehicle and was told by respondent that he would pick her up in 30 minutes. Petitioner testified that respondent still had her phone and she was unable to contact her friends. When respondent returned, she was afraid and felt that she had to leave the campus with him. After driving for some time, respondent pulled the vehicle over and searched petiti...