| Matter of Shana SS. v Jeremy TT. |
| 2013 NY Slip Op 07785 [111 AD3d 1090] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Shana SS., Respondent, v Jeremy TT.,Appellant. (And Three Other Related Proceedings.) |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Karla W. Buettner of counsel),for respondent. Martin Alan Cohen, Glens Falls, attorney for the child.
Egan Jr., J. Appeals (1) from an order of the Family Court of Warren County (Breen,J.), entered September 10, 2012, which, among other things, granted petitioner'sapplications, in three proceedings pursuant to Family Ct Act articles 6 and 8, for custodyof the parties' child and for an order of protection, and (2) from the order of protectionissued thereupon.
In April 2002, respondent, who then resided in New York, was arrested after hetransmitted child pornography via the Internet to an undercover police officer who wasposing as a 13-year-old girl. In February 2003, respondent "jumped bail" on that chargeand fled to Florida where, by his own admission, he began "living as a fugitive." Whilethere, respondent became involved in an electronic crime enterprise and primarilysupported himself by engaging in credit card fraud. Respondent and petitioner met inFlorida in April 2004 and moved in together shortly thereafter.
In October 2004, respondent was arrested and extradited to New Jersey to face afederal indictment related to the credit card fraud. In 2005, the parties' child, who is thesubject of these proceedings, was born. Following resolution of the federal charges,respondent was extradited to [*2]New York to answer tothe child pornography and bail jumping offenses and, in 2006, pleaded guilty to onecount of promoting a sexual performance by a child, one count of attempteddissemination of indecent material to a minor in the first degree and one count of bailjumping in the second degree and was sentenced to an aggregate prison term of 2 to 6years.
During the course of respondent's incarceration, petitioner initially attempted tofacilitate a relationship between respondent and the child. As time went on, however,petitioner became increasingly alarmed by what she regarded as the threatening nature ofcertain statements made by respondent in various letters to and telephone conversationswith her. Following respondent's release from prison in 2011, petitioner commenced thefirst two of these four proceedings alleging a family offense and seeking an order ofprotection. Shortly thereafter, respondent petitioned for custody and visitation, andpetitioner cross-petitioned for sole legal and physical custody of the child. A combinedhearing ensued, at the conclusion of which Family Court granted petitioner sole legal andphysical custody of the child with therapeutic visitation to respondent. Family Court alsofound that respondent committed the family offense of harassment in the first degree andawarded petitioner a two-year order of protection. Respondent now appeals.
We affirm. Contrary to respondent's assertion, Family Court's detailed factualfindings—both with respect to the underlying family offense and the award oftherapeutic visitation—are more than sufficient to permit intelligent appellatereview. Turning to the merits, petitioner bore the burden of establishing by apreponderance of the evidence (see Matter of Christina MM. v George MM., 103 AD3d935, 936 [2013]; Matter ofSharyn PP. v Richard QQ., 83 AD3d 1140, 1142 [2011]) that respondentcommitted the family offense of harassment in the first degree—specifically, thathe "intentionally and repeatedly" harassed her "by engaging in a course of conduct or byrepeatedly committing acts which place[d] [her] in reasonable fear of physical injury"(Penal Law § 240.25). The requisite intent may be inferred from the surroundingcircumstances (see Matter ofRobert AA. v Colleen BB., 101 AD3d 1396, 1399 [2012], lv denied 20NY3d 860 [2013]; Matter ofPatricia H. v Richard H., 78 AD3d 1435, 1436 [2010]). Ultimately, "whether afamily offense [has been] committed is a factual issue to be resolved by . . .Family Court, and its determinations regarding the credibility of witnesses are entitled togreat weight on appeal" (Matterof Nettles v Fearrington, 95 AD3d 1131, 1131 [2012] [internal quotation marksand citation omitted]).
Petitioner testified that, while incarcerated, respondent repeatedly threatened both herwell-being and to take the child away from her. For example, when petitioner advisedrespondent that she had met another man (now her husband), respondent replied, "[You]must have a f . . . ing death wish. . . . [I]t's until death do uspart . . . , you don't just get to leave." Similarly, when petitioner approachedrespondent about changing the child's last name,[FN1]respondent stated, "[I]f you try to take that f . . . ing kid from me I willmake sure he . . . never knows your name, . . . I [will] makehim disappear like that (fingers snapping); all it takes is one phone call." Finally, whenpetitioner suggested that they allow Family Court to resolve their differences, respondentreplied, "[E]ven if you do win in court I'm gonna make sure you lose." [*3]These specific statements, in our view, "carried ominousimplications" for petitioner and the child's safety and, given the context in which theywere made,[FN2]"provided ample support for Family Court's conclusion that respondent had committed[the underlying] family offense" (Matter of Amy SS. v John SS., 68 AD3d 1262, 1263-1264[2009], lv denied 14 NY3d 704 [2010]). Although respondent steadfastly deniedthreatening to harm the child or petitioner, this conflict in the testimony presented acredibility issue for Family Court to resolve, and we reject respondent's assertion that theforegoing statements constituted protected speech (see Matter of Cukerstein v Wright, 68 AD3d 1367, 1369[2009]).
As for Family Court's decision to award respondent therapeutic visitation with thechild, "the propriety of visitation is generally left to the sound discretion of Family Courtwhose findings are accorded deference by this Court and will remain undisturbed unlesslacking a sound basis in the record" (Matter of Conklin v Hernandez, 41 AD3d 908, 910 [2007][internal quotation marks and citations omitted]). Here, in light of respondent's limitedcontact with the child while incarcerated and his resulting lack of parental experience, aswell as his failure to successfully complete a sex offender treatment program, we discernno basis upon which to set aside Family Court's award of therapeuticvisitation—particularly given the nightmares and behavioral difficulties that thechild experienced following visits with respondent (see Matter of Smith v Roberts, 67 AD3d 688, 689 [2009],lv denied 13 NY3d 717 [2010]; Matter of Perez v Hughes, 59 AD3d 725, 726 [2009]).Respondent's remaining arguments, to the extent not specifically addressed, have beenexamined and found to be lacking in merit.
Lahtinen, J.P., Stein and Spain, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: The apparent impetusfor this change was a desire to avoid having the child bear the same last name as aregistered sex offender. Respondent ultimately consented to the name change.
Footnote 2: During the period thatthese various threats were made, petitioner also received several disturbing letters fromrespondent, wherein he, among other things, indicated that he could have killed theSecret Service agent who apprehended him in Florida "and not felt a single qualm aboutit," reflected upon how much he "would enjoy leveling a federal courthouse with a halfton of SemTex" and revealed that he had "such contempt" for those involved in hisfederal prosecution that "it freak[ed] [him] the hell out." On this latter point, respondentacknowledged, "I don't think it's normal to feel that way about another human being. Butthat's the way I feel; that the world would be a better place without them in it." Petitionertestified that because respondent was a fugitive when she met him—and havinglearned in January 2011 of respondent's previously expressed desire to killher—she believed that respondent had the knowledge and the wherewithal to harmher and her family (cf. Matter ofCukerstein v Wright, 68 AD3d 1367, 1369 [2009] ["(Respondent's) priorexperience with (petitioner's) assaultive behavior made the threats credible"]).