Saquipay v. Puzhi

• Decision Date: 18 April 2018
• Docket Number: 2017–06090,Docket No. O–11333–16
• Citation: 74 N.Y.S.3d 329,160 A.D.3d 879
• Parties: In the Matter of Mery SAQUIPAY, respondent, v. Jose PUZHI, appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 879

74 N.Y.S.3d 329

In the Matter of Mery SAQUIPAY, respondent,

v.Jose PUZHI, appellant.

2017–06090

Docket No. O–11333–16

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

Submitted—March 5, 2018

April 18, 2018

Adewole Agbayewa, Fresh Meadows, NY, for appellant.

Heath J. Goldsein, Jamaica, NY, for respondent.

John C. Macklin, New Hyde Park, NY, attorney for the child.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, Jose Puzhi appeals from an order of protection of the Family Court, Queens County (Marilyn L. Zarrello, Ct. Atty. Ref.), dated February 24, 2017. The order of protection, upon a finding that the appellant committed the family offenses of attempted assault in the third degree, harassment in the second degree, menacing in the third degree, and disorderly conduct, made after a fact-finding hearing, directed him, inter alia, to stay away from the petitioner until and including February 24, 2018.

ORDERED that the order of protection is affirmed, without costs or disbursements.

The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the appellant, the father of the parties' child. After a hearing, the Family Court found that the appellant committed the family offenses of attempted assault in the third degree, harassment in the second degree, menacing in the third degree, and disorderly conduct. The court issued an order of protection, inter alia, directing the appellant to stay away from the petitioner until and including February 24, 2018.

Although the order of protection expired by its own terms on February 24, 2018, the appeal has not been rendered academic in light of the enduring consequences which may flow from a finding that the appellant committed a family offense (see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 673, 3 N.Y.S.3d 288, 26 N.E.3d 1143 ).

The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" ( Family Ct Act § 832 ; see Matter of Shank v. Shank, 155 A.D.3d 875, 876, 63 N.Y.S.3d 719 ; Matter of Fuel v. Chaca, 150 A.D.3d 1231, 1232, 53 N.Y.S.3d 834 ; Matter of Cassie v. Cassie, 109 A.D.3d 337, 340, 969 N.Y.S.2d 537 ). "The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record" ( Matter of Richardson v. Richardson, 80 A.D.3d 32, 43–44, 910 N.Y.S.2d 149 ; see Matter of Shank v. Shank, 155 A.D.3d at 876, 63 N.Y.S.3d 719; Matter of Fuel v. Chaca, 150 A.D.3d at 1232, 53 N.Y.S.3d 834 ; Matter of Nusbaum v. Nusbaum, 59 A.D.3d 725, 725, 874 N.Y.S.2d 378 ).

Here, a fair preponderance of the evidence adduced at the hearing supports the Family Court's determination that the appellant committed acts constituting the family offenses of attempted assault in the third degree (see Penal Law §§ 110.00, 120.00[1] ; Matter of Fuel v. Chaca, 150 A.D.3d at 1232, 53 N.Y.S.3d 834 ; Matter of King v. King, 150 A.D.3d 1116, 1117, 56 N.Y.S.3d 182 ) and harassment in the second degree (see Penal Law § 240.26[1] [2] ; Matter of Shank v. Shank, 155 A.D.3d at 876–877, 63 N.Y.S.3d 719; Matter of Fuel v. Chaca, 150 A.D.3d at 1232, 53 N.Y.S.3d 834 ; Matter of Polizzi v. McCrea, 129 A.D.3d 733, 734, 10 N.Y.S.3d 568 ; Matter of Messana v. Messana, 115 A.D.3d 860, 861, 982 N.Y.S.2d 346 ). The evidence demonstrated that on June 14, 2016, the appellant attempted to cause the petitioner to sustain a physical injury when he pulled the petitioner by the arm, pushed her against a wall, and pushed her by the shoulders, causing her to fall to the floor (see Penal Law §§ 110.00, 120.00[1] ; Matter of Fuel v. Chaca, 150 A.D.3d at 1232, 53 N.Y.S.3d 834 ; Matter of King v. King, 150 A.D.3d at 1117, 56 N.Y.S.3d 182 ). Further, the evidence demonstrated that the appellant, with the intent to harass, annoy, or alarm the petitioner, kicked her on November 26, 2015, threatened to cause her physical harm during an April 2016 telephone call, and followed her in or about a public place on June 14, 2016 (see Penal Law § 240.26[1][2] ; Matter of Shank v. Shank, 155 A.D.3d at 876–877, 63 N.Y.S.3d 719; Matter of Fuel v. Chaca, 150 A.D.3d at 1232, 53 N.Y.S.3d 834 ; Matter of Polizzi v. McCrea, 129 A.D.3d at 734, 10 N.Y.S.3d 568 ; Matter of Messana v. Messana, 115 A.D.3d at 861, 982 N.Y.S.2d 346 ).

However, contrary to the Family Court's findings, the petitioner failed to establish that the appellant committed the family offenses of menacing in the third degree and disorderly conduct. There was insufficient evidence that the appellant placed or attempted to place the petitioner in fear of death, imminent serious physical injury, or physical injury by physical menace (see Penal Law § 120.15 ; Paruchuri v. Akil, 156 A.D.3d 712, 714, 66 N.Y.S.3d 326 ; Matter of Frimer v. Frimer, 143 AD3d 895, 897, 39 N.Y.S.3d 226 ). In addition, the evidence...