| Matter of Khan-Soleil v Rashad |
| 2013 NY Slip Op 05074 [108 AD3d 544] |
| July 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of Bibi Khan-Soleil,Appellant, v Armani Rashad, Respondent. |
—[*1] Gail R. Rich, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter of counsel), attorney for thechild.
In a family offense proceeding pursuant to Family Court Act article 8, the motherappeals from an order of the Family Court, Kings County (Hepner, J.), dated April 19,2012, which, upon granting the father's motion, made at the close of her case, to dismissthe petition based upon her failure to establish a prima facie case, dismissed the petition.
Ordered that the order is affirmed, with costs.
The allegations in a family offense proceeding must be "supported by a fairpreponderance of the evidence" (Family Ct Act § 832; see Matter of Jarrett v Jarrett,102 AD3d 695 [2013];Matter of Scanziani v Hairston, 100 AD3d 1007 [2012]; Matter of Daoud v Daoud, 92AD3d 878 [2012]; Matterof Mamantov v Mamantov, 86 AD3d 540, 541 [2011]). "In determining amotion to dismiss for failure to establish a prima facie case, the evidence must beaccepted as true and given the benefit of every reasonable inference which may be drawntherefrom" (Matter of Mamantov v Mamantov, 86 AD3d at 541 [internalquotation marks omitted]; see CPLR 4401).
The Family Court correctly found that the mother failed to establish a prima faciecase with respect to the family offenses of assault in the third degree (see PenalLaw § 120.00), reckless endangerment in the second degree (see PenalLaw § 120.20), and harassment in the second degree (see Penal Law§ 240.26). As to the allegations of assault and reckless endangerment, the motherpresented no evidence which would support a finding of physical injury (seePenal Law § 10.00 [9], [10]). As to the allegations of assault and harassment, themother presented no evidence which would support a finding that the father had therequisite intent to commit these family offenses (see Penal Law §§120.00, 240.26).
The Family Court also correctly found that the mother failed to establish a primafacie case with respect to the family offenses of forcible touching (see Penal Law§ 130.52) and sexual abuse in the third degree (see Penal Law §130.55). The mother presented no direct evidence that the father touched the child "forthe purpose of degrading or abusing" the child or "gratifying [his] sexual desire" (PenalLaw § 130.52; see Penal Law §§ 130.00 [3]; 130.55; Matter of Christian E., 68AD3d 1109, 1110 [2009]). Furthermore, although, in some instances, the element ofintent may be [*2]inferred from the nature of the actscommitted and the circumstances in which they occurred (see e.g. Matter of Lauryn H.[William A.], 73 AD3d 1175, 1177 [2010]), an intent to gratify sexual desire onthe part of the father cannot be inferred from the totality of the circumstances here (see Matter of Jeshaun R. [EanR.], 85 AD3d 798, 800 [2011]; Matter of Jelani B., 54 AD3d 1032, 1032-1033 [2008];see also People v Guerra, 178 AD2d 434 [1991]; cf. Matter of Ibn Abdus S., 91AD3d 428, 429-430 [2012]; Matter of Olivia YY., 209 AD2d 892 [1994]).Accordingly, the mother failed to establish that the father had the requisite intent tocommit the family offenses of forcible touching (see Penal Law § 130.52)and sexual abuse in the third degree (see Penal Law § 130.55).
Contrary to the mother's contention, the Family Court properly refused to permit herto admit hearsay testimony pursuant to Family Court Act § 1046 (a) (vi). Thatsection, by its own terms, is limited to a "hearing under . . . article [10] andarticle ten-A" of the Family Court Act (Family Ct Act § 1046 [a]), and althoughthe hearsay exception contained in Family Court Act § 1046 (a) (vi) has beenapplied in the context of custody proceedings commenced pursuant to Family Ct Actarticle 6 where the basis of the custody proceeding is founded on neglect or abuse suchthat the issues are "inextricably interwoven" (Matter of Nilda S. v Dawn K., 302AD2d 237, 238 [2003]; see Matter of Linda P. v Thomas P., 240 AD2d 583, 584[1997]; Matter of Le Favour v Koch, 124 AD2d 903, 906 [1986]), the FamilyCourt properly refused to apply Family Court Act § 1046 (a) (vi) in this case(see Matter of Jarrett v Jarrett, 102 AD3d at 695; Matter of Daoud vDaoud, 92 AD3d at 878; Matter of Belinda YY. v Lee ZZ., 74 AD3d 1394, 1395[2010]).
The mother's remaining contentions are without merit (see CPLR 4508 [a][3]; Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]; Cheathem v Ostrow, 100AD3d 819 [2012]; Dank vSears Holding Mgt. Corp., 93 AD3d 627, 628 [2012]; see generallyLightman v Flaum, 97 NY2d 128, 133 [2001], cert denied 535 US 1096[2002]). Rivera, J.P., Roman, Miller and Hinds-Radix, JJ., concur.