| Matter of Spooner-Boyke v Charles |
| 2015 NY Slip Op 02132 [126 AD3d 907] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Cristofer A. Spooner-Boyke,Respondent, v Analeah Charles, Appellant. |
Christina Brandt-Young, New York, N.Y., for appellant.
Sally S. Attia, Kew Gardens, N.Y., for respondent.
Stewart N. Altman, Mineola, N.Y., attorney for the child.
Motion by the appellant for leave to reargue stated portions of an appeal from anorder of protection of the Family Court, Queens County, dated April 5, 2013, which wasdetermined by decision and order of this Court dated October 29, 2014.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, it is
Ordered that the motion is granted to the extent that reargument is granted, uponreargument, the decision and order of this Court dated October 29, 2014 (Matter of Spooner-Boyke vCharles, 121 AD3d 1120 [2014]), is recalled and vacated, and the followingdecision and order is substituted therefor, and the motion is otherwise denied:
In a family offense proceeding pursuant to Family Court Act article 8, the motherappeals from an order of protection of the Family Court, Queens County (Lebwohl, J.),dated April 5, 2013, which, after a hearing, and upon a finding that she committed thefamily offenses of assault in the third degree, menacing in the third degree, disorderlyconduct, and harassment in the second degree, directed her, inter alia, to stay away fromthe subject child until and including January 23, 2016.
Ordered that the order of protection is reversed, on the law, without costs ordisbursements, that branch of the petition alleging that the mother committed the familyoffense of assault in the third degree is dismissed, and the matter is remitted to the FamilyCourt, Queens County, for a new hearing and determination of the remaining branches ofthe petition. Pending the new determination, the order of protection shall remain in effectas a temporary order of protection.
Cristofer A. Spooner-Boyke (hereinafter the father) and Analeah Charles (hereinafterthe mother) are the parents of the subject child. The father commenced this familyoffense proceeding on the child's behalf, alleging that the mother physically abused thechild on multiple occasions. Following a fact-finding hearing, the Family Court foundthat the mother committed the family offenses of assault in the third degree, menacing inthe third degree, disorderly conduct, and harassment in the second degree, and issued anorder of protection remaining in effect until and [*2]including January 23, 2016, directing the mother to, interalia, stay away from the child.
The Family Court improperly rejected the mother's request that it take judicial noticeof the determination in the parties' prior custody proceeding, in the same court, in whichthe father admittedly made false allegations. That proceeding, and the court's findingstherein regarding the father, were relevant to the court's assessment of the father'scredibility in this matter. Accordingly, the court improvidently exercised its discretion indeclining to take judicial notice of the prior custody proceeding (see Matter of Shirley v Shirley,101 AD3d 1391 [2012]; Matter of Lane v Lane, 68 AD3d 995 [2009]).
Additionally, the Family Court erred in drawing a negative inference based on themother's failure to call the child's maternal grandmother as a witness. " 'A party isentitled to a missing witness charge when the party establishes that an uncalled witnesspossessing information on a material issue would be expected to provide noncumulativetestimony in favor of the opposing party and is under the control of and available to thatparty' " (Matter ofAdam K., 110 AD3d 168, 177 [2013], quoting Zito v City of New York, 49AD3d 872, 874 [2008]). The court sua sponte drew a negative inference based onthe mother's failure to call the grandmother as a witness, and failed to advise the motherthat it intended to do so (see People v Gonzalez, 68 NY2d 424, 428 [1986]; Matter of Adam K., 110 AD3d168 [2013]; Spoto v S.D.R. Constr., 226 AD2d 202 [1996]; People vMagett, 196 AD2d 62 [1994]). The mother, therefore, lacked the opportunity toexplain her failure to call the grandmother as a witness, or to discuss whether thegrandmother was even available to testify or under her control (see Spoto v S.D.R.Constr., 226 AD2d at 204; People v Magett, 196 AD2d at 64).
Contrary to the Family Court's finding, the evidence proffered at the hearing wasinsufficient to establish by a fair preponderance of the evidence that the mothercommitted the family offense of assault in the third degree. A person is guilty of assaultin the third degree when "[w]ith intent to cause physical injury to another person, he [orshe] causes such injury to such person" (Penal Law § 120.00 [1]). "Physicalinjury" is defined as "impairment of physical condition or substantial pain" (Penal Law§ 10.00 [9]). Here, no evidence was presented that the child's physicalcondition was impaired, and there was insufficient evidence to establish that the childsuffered substantial pain (see Matter of Philip A., 49 NY2d 198, 200 [1980]; People v Boley, 106 AD3d753, 754 [2013]).
The mother's remaining contentions are without merit.
Based upon the foregoing, that branch of the petition which alleged that the mothercommitted the family offense of assault in the third degree must be dismissed, and thematter remitted to the Family Court, Queens County, for a hearing and newdetermination of the remaining branches of the petition. Skelos, J.P., Roman,Hinds-Radix and LaSalle, JJ., concur.