| Matter of Angela C. v Harris K. |
| 2013 NY Slip Op 00420 [102 AD3d 588] |
| January 29, 2013 |
| Appellate Division, First Department |
| In the Matter of Angela C., Respondent, v HarrisK., Appellant. |
—[*1] Yisroel Schulman, New York Legal Assistance Group, New York (Amanda Beltz ofcounsel), for respondent. Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), attorney for thechild.
Order, Family Court, New York County (Gloria Sosa-Lintner, J.), entered on orabout December 22, 2010, which, inter alia, granted petitioner mother's motion forsummary judgment on her family offense petition, finding that respondent fathercommitted acts that constituted aggravated harassment in the second degree, and awardedher a five-year order of protection directing respondent to, inter alia, stay away from andcease communication with her and the parties' child, unanimously affirmed, withoutcosts.
Contrary to respondent's contentions, his decision to proceed pro se during the familyoffense proceeding was made knowingly, willingly, and voluntarily. The record revealsthat the court not only informed respondent of his right to counsel (see Family CtAct § 262), but on three separate occasions assigned a different counsel to him.Respondent dismissed each of them without cause in order to represent himself basedupon his own strategic reasoning. Under these circumstances, the fact that he wasunrepresented did not constitute a denial of due process; he was plainly competent toelect to proceed pro se and did so freely (see Matter of Emma L., 35 AD3d 250 [1st Dept 2006],lv denied and dismissed 8 NY3d 904 [2007]; Matter of James Joseph M. v Rosana R., 32 AD3d 725 [1stDept 2006], lv denied 7 NY3d 717 [2006]; Matter of Anthony K., 11 AD3d 748 [3d Dept 2004]).
Respondent's conviction on four counts of aggravated harassment in the seconddegree as to petitioner serves as conclusive proof of the underlying facts in the instantproceeding, since he had a full and fair opportunity to contest the issues raised in thecriminal proceeding (see Grayes v DiStasio, 166 AD2d 261, 263 [1st Dept 1990],citing Gilberg v Barbieri, 53 NY2d 285, 291 [1981]).
We find that the family offense petition was established by a fair preponderance ofthe evidence (see Family Ct Act § 832; Matter of Nelson-Waller v Waller, 60 AD3d 1068 [2d Dept2009]).
The Family Court properly found aggravating circumstances, based on respondent'sconduct in sending harassing letters to petitioner from prison in repeated violation of theprior [*2]order of protection (see Family Ct Act§ 827 [a] [vii]), his criminal conviction of four counts of aggravated harassmentwith regard to petitioner, and his aggressive threatening conduct in court, which the courtobserved and determined constituted an immediate and ongoing threat to petitioner (see Matter of Pearlman vPearlman, 78 AD3d 711 [2d Dept 2010]; Family Ct Act § 827 [a] [vii]).
Although respondent's threats were directed at petitioner, they impacted upon thechild, and thus the Family Court properly issued a five-year order of protection in favorof both the mother and the child (see Matter of Amy SS. v John SS., 68 AD3d 1262 [3dDept 2009], lv denied 14 NY3d 704 [2010]). A full stay-away order was alsoappropriate, since the father had no relationship with the then six-year-old child due tohis incarceration from the time the child was only four months old (see id.).Concur—Andrias, J.P., Sweeny, DeGrasse, Freedman and Richter, JJ.