| Matter of Melind M. v Joseph P. |
| 2012 NY Slip Op 03714 [95 AD3d 553] |
| May 10, 2012 |
| Appellate Division, First Department |
| In the Matter of Melind M., Appellant, v Joseph P.,Respondent. |
—[*1] Randall S. Carmel, Syosset, for respondent. Tennille M. Tatum-Evans, New York, attorney for the child.
Order, Family Court, New York County (Diane Costanzo, Ref.), entered on or about April14, 2010, which, after a fact-finding hearing, dismissed the petition for an order of protection,unanimously reversed, without costs, and the matter remanded to the Family Court, New YorkCounty, for further proceedings not inconsistent with this Court's decision.
Petitioner filed two petitions against respondent, with whom she has an infant child (Jade).Petitioner has a second infant child (Kaylene) from a different father. The first petition was filedon or about January 21, 2009, and alleged two incidents that occurred on November 4, 2008 andMarch 31, 2007. Hearing testimony established that on November 4, 2008, respondent showedup at Kaylene's babysitter's home and attempted to initiate a physical altercation with a man whowas with petitioner. He also tried to get his girlfriend to initiate a physical altercation withpetitioner. Respondent testified that he could not remember what he said to petitioner, but that hechallenged petitioner's friend to a fight. Respondent further testified that his conduct was theresult of him being in a "rage that day" because the mother of his second child had just run away.Petitioner testified that respondent was in front of her face, causing her to feel "frightened" and"scared." Petitioner's friend testified that she was "frozen." Petitioner gave Kaylene to thebabysitter and told her to go back into the apartment. Respondent fled when the babysitter calledthe police, but told petitioner that he would get her next time. Petitioner waited until the policearrived to leave the babysitter's house.
Hearing testimony also established that on March 31, 2007, while respondent was havingvisitation with Jade, he called petitioner to complain that the child was crying, and whenpetitioner told him to return the child to her, he repeatedly cursed at petitioner and threatened thathe would never return the child. Respondent called petitioner a whore and said he would teachthe child to hate her mother. When the conversation ended, petitioner immediately called thepolice. Later that day, respondent's girlfriend returned the child. When petitioner walkedrespondent's girlfriend outside, respondent, who admitted to drinking alcohol prior to coming topetitioner's apartment, cursed them both and told them that something was going to happen to[*2]them. Petitioner testified that due to these events, an order ofprotection was issued but no charges were filed.
The second petition, filed on June 15, 2009, alleged that on June 12, 2009, respondent andhis brother used foul and abusive language to threaten and harass petitioner while they were inthe waiting area of the Family Court.
Based on these allegations, petitioner alleges that respondent committed several familyoffenses, including menacing in the third degree. Petitioner therefore sought an order ofprotection against respondent on behalf of her and her children.
To support a finding that a respondent has committed a family offense, a petitioner mustprove the allegations by a fair preponderance of the evidence (Matter of Everett C. v Oneida P., 61 AD3d 489 [2009]; Matter of Melissa Marie G. v JohnChristopher W., 57 AD3d 314 [2008]; Family Ct Act § 832). A hearing court'sdetermination is entitled to great deference because the hearing court has the best vantage pointfor evaluating the credibility of the witnesses. Its determination should therefore not be set asideunless it lacks a sound and substantial evidentiary basis (id.; Matter of Peter G. v Karleen K., 51 AD3d 541, 542 [2008]).
Here, although the Family Court credited petitioner's testimony concerning the actscommitted by respondent and respondent admitted committing most of them, the court dismissedthe petition. At the very least, respondent's words and actions on November 4, 2008 placed orattempted to place petitioner in fear of death, imminent serious physical injury or physical injuryand thus established the family offense of menacing in the third degree (see Penal Law§ 120.15 [a person is guilty of menacing in the third degree when, by physical menace, heor she intentionally places or attempts to place another person in fear of death, imminent seriousphysical injury or physical injury]).
Specifically, petitioner testified credibly, as noted above, that respondent arrived at thebabysitter's apartment unexpectedly and in a rage. He directed his girlfriend to beat up petitionerand got "in her face," which caused petitioner to become "frozen" with fear (Matter of RamonM., 109 AD2d 882, 883 [1985] [act of leaping towards the complainant without physicalcontact in a karate kick position was sufficient to establish physical menace]). Respondent'sthreats and unexpected presence in combination with the March 31, 2007 occurrences, whererespondent told petitioner that something was going to happen to her, support a finding that heintentionally placed petitioner in imminent fear of physical injury (Yvette H. v MichaelG., 270 AD2d 123[*3][2000], lv denied 95 NY2d 762[2000]). Indeed, petitioner's asking the babysitter to take the infant back inside the apartment andcall the police supports her claim. Accordingly, given this evidence, the Family Court improperlydismissed the petition. Concur—Tom, J.P., Friedman, Acosta, DeGrasse andRomán, JJ.