IN RE: J.N.W. (2024)

Order of fact-finding and disposition (one paper) and order of protection, Family Court, New York County (Hasa A. Kingo, J.), entered on or about November 28, 2022, which, after a hearing, found that father committed the family offenses of assault in the third degree, criminal obstruction of breathing, sexual abuse in the third degree, and disorderly conduct against the mother, harassment in the second degree against the mother and subject children, and found aggravating circumstances warranting a five-year order of protection against the father directing him to stay away from the mother and children for five years, subject to an order of custody and visitation, unanimously affirmed, without costs.

A preponderance of the evidence presented at the hearing established that the father engaged in acts which would constitute the family offenses of assault in the third degree (Penal Law § 120.00), criminal obstruction of breathing (Penal Law § 121.11), sexual abuse in the third degree (Penal Law § 130.55), harassment in the second degree (Penal Law § 240.26[3]), and disorderly conduct (Penal Law § 240.20).  The court's decision to credit the mother's testimony over the father's testimony is entitled to great deference, and it should not be set aside (see Matter of Judith L.C. v. Lawrence Y., 179 A.D.3d 616, 616, 118 N.Y.S.3d 573 [1st Dept. 2020], lv denied 35 N.Y.3d 911, 2020 WL 5047416 [2020]).

The mother's credible testimony established that the father committed assault in the third degree based on his conduct in March 2013, when he dragged the mother by the hair, choked her, and punched her in the face, causing her pain and visible bruising (see Matter of Antoinette T. v. Michael J.M., 157 A.D.3d 531, 531–532, 69 N.Y.S.3d 45 [1st Dept. 2018];  Matter of Charlene R. v. Malachi R., 151 A.D.3d 482, 482–483, 53 N.Y.S.3d 530 [1st Dept. 2017]).  The mother's testimony also established that the father committed criminal obstruction of breathing (see Penal Law § 121.11) when he choked the mother in March 2013, and sexual abuse in the third degree (Penal Law § 130.55) when he subjected her to sexual contact without her consent on November 11, 2020.

Similarly, the mother's testimony supports a finding that the father committed disorderly conduct (Penal Law § 240.20) against the mother and harassment in the second degree against the children as well as the mother (Penal Law § 240.26).  According to the mother's testimony, in December 2020, the father, while apparently intoxicated, forced his way into the mother and the children's home where the children were attending online school, and began screaming, crying, and flailing.  His actions prompting the children to cry and scream for the father to stop and not hurt the mother.

The determination by Family Court that aggravating circumstances existed to warrant the imposition of a five-year order of protection against the father is more than supported by the record (see Matter of Nicole W. v. Louis T., 190 A.D.3d 510, 510–511, 135 N.Y.S.3d 815 [1st Dept. 2021]).  Here the testimony established that the father engaged in numerous violent acts toward the mother with one incident occurring in the presence of the children (Matter of Monique J. v. Keith S., 194 A.D.3d 611, 612, 144 N.Y.S.3d 355 [1st Dept. 2021];  Matter of Coumba F. v. Mamdou D., 102 A.D.3d 634, 634–635, 959 N.Y.S.2d 70 [1st Dept. 2013]).  Further, the father conceded that he repeatedly violated a prior Kings County order of protection (Family Ct Act § 827[a][vii];  Matter of Jaynie S. v. Gaetano D, 134 A.D.3d 473, 474, 22 N.Y.S.3d 12 [1st Dept. 2015], lv. denied 26 N.Y.3d 917, 2016 WL 531611 [2016]).

We have considered the father's remaining arguments and find them unavailing.