| Matter of Boua TT. v Quamy UU. |
| 2009 NY Slip Op 07539 [66 AD3d 1165] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Boua TT., Respondent, v Quamy UU.,Appellant. (And Another Related Proceeding.) |
—[*1] Marcy L. Cox, Law Guardian, Endwell.
Lahtinen, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered September 10, 2008, which granted petitioner's applications, in two proceedings pursuantto Family Ct Act article 8, for an order of protection.
Petitioner and respondent are the divorced parents of two children, a daughter (born in 2004)and a son (born in 2005). Their various contentious proceedings included two August 2007family offense proceedings filed by petitioner alleging, among other things, that respondentstruck the oldest child (when she was two years old) with a belt leaving marks on the child andthat, in early August 2007, respondent had harassed petitioner with repeated phone calls. FamilyCourt found, following a hearing, that respondent had committed the family offense of assault inthe third degree with regard to the child and aggravated harassment in the second degree as topetitioner. After the ensuing dispositional hearing, Family Court issued an order of protection forone year directing respondent to refrain from contact and communication with petitioner andrestricting visitation to supervised visitation. Respondent appeals.
Respondent contends that the evidence did not support the offenses found by Family Court.A family offense must be established by a fair preponderance of the evidence (seeFamily Ct Act § 832; Matter ofMauzy v Mauzy, 40 AD3d 1147, 1148 [2007]). Where, as here, there is conflictingevidence, we accord deference to Family Court's credibility determinations (see [*2]Matter of Gil v Gil, 55 AD3d 1024, 1025 [2008]; Matter of Yette v Yette, 39 AD3d952, 953 [2007], lv denied 9 NY3d 802 [2007]). The family offense premised uponassault in the third degree required proof that respondent caused "physical injury" (seePenal Law § 120.00), which "means impairment of physical condition or substantial pain"(Penal Law § 10.00 [9]). Testimony was presented by two witnesses regarding respondentstriking his two-year-old infant daughter with a belt. Descriptions were provided by thesewitnesses, as well as another witness, of the marks that were left on the child, including weltsand bruises. Family Court credited this proof and, in light of the young age of the child, theconduct by respondent as described by the witnesses was sufficient to establish the familyoffense.
Family Court also found a family offense based upon repeated phone calls made byrespondent to petitioner, which constituted aggravated harassment in the second degree."[M]aking a telephone call will constitute aggravated harassment in the second degree when it ismade 'with intent to harass, annoy, threaten or alarm another person' and is made either 'in amanner likely to cause annoyance or alarm' or 'with no purpose of legitimate communication' "(Matter of Draxler v Davis, 11AD3d 760, 760 [2004], quoting Penal Law § 240.30 [1], [2]). Petitioner testified thatrespondent made numerous telephone calls to her (as many as 10 in one evening), despite thefact that she repeatedly directed him to stop calling her. She further testified that, on manyoccasions, he threatened to keep the children from her and to even take them out of the country.While sharply conflicting evidence was presented and respondent asserted that he had validpurposes for his calls, Family Court credited petitioner's testimony as to the calls and, acceptingthose credibility determinations, the record supports Family Court's finding that the calls wereplaced with the intent to annoy and alarm petitioner (see Matter of Draxler v Davis, 11AD3d at 760-761).
As for respondent's additional argument regarding the conditions of the one-year order ofprotection, that order has now expired and, accordingly, the issue is moot (see Matter of Christopher NN. v Bobby JoOO., 59 AD3d 828, 828 [2009]; Matter of Hanehan v Hanehan, 260 AD2d 685,686 [1999]). In any event, this argument is unpersuasive.
Mercure, J.P., Kane, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.