IN RE: C. H. (2024)

Order, Supreme Court, New York County (Tandra L. Dawson, J.), entered on or about July 11, 2023, which, to the extent appealed as limited by the briefs, determined after a hearing that respondent committed the family offenses of harassment in the second degree, sexual abuse in the third degree, criminal obstruction of breathing or blood circulation, assault in the third degree, and stalking in the fourth degree, and upon finding the existence of aggravating circumstances, granted a five-year order of protection in favor of petitioner, unanimously affirmed, without costs.

A fair preponderance of the evidence supports the Integrated Domestic Violence Court's determination that respondent engaged in acts constituting the family offense of harassment in the second degree (Family Court Act § 832;  Penal Law § 240.26[1], [3]).  Petitioner testified that during the parties’ relationship, respondent pinned her down onto the bed and squeezed her neck on one occasion;  grabbed her arm on another occasion, causing bruising and soreness;  on a third occasion, tried to strangle her after she rebuffed his sexual advances;  and on a fourth occasion, squeezed her so hard that she heard her rib pop and experienced pain for approximately two weeks thereafter.  Petitioner also testified that she was scared and upset by respondent's actions, and the court properly inferred from respondent's actions and the surrounding circumstances that he intended to cause these effects (see Matter of Giovanni De M. v. Nick W., 200 A.D.3d 517, 518, 155 N.Y.S.3d 312 [1st Dept. 2021];  see also Matter of Rosa G. v. Hipolito D., 215 A.D.3d 571, 571, 187 N.Y.S.3d 615 [1st Dept. 2023]).  Petitioner's testimony at the hearing supports the finding that respondent intentionally engaged in a course of conduct or repeatedly committed acts that alarmed or seriously annoyed petitioner, and that served no legitimate purpose (see Family Court Act § 832;  Matter of Brooke A.D. v. Rajiv D., 199 A.D.3d 407, 408, 158 N.Y.S.3d 6 [1st Dept. 2021];  Matter of Rosa G., 215 A.D.3d at 571, 187 N.Y.S.3d 615;  Annette R. v. Dakiem D., 203 A.D.3d 673, 673, 165 N.Y.S.3d 70 [1st Dept. 2022]).

Petitioner's testimony regarding her injured rib is also sufficient to support a finding that respondent committed the family offense of assault in the third degree, including infliction of physical injury (Family Court Act §§ 812[1];  832;  Penal Law § 120.00[1];  see Matter of J.N.W. v. K.T., 228 A.D.3d 598, 599, 212 N.Y.S.3d 97 [1st Dept. 2024];  Matter of Madochee F. v. Dieudonne M., 216 A.D.3d 453, 454, 188 N.Y.S.3d 64 [1st Dept. 2023]).

Additionally, a fair preponderance of the evidence established that respondent's actions of grabbing petitioner by her neck and strangling her until she was gasping for air and felt lightheaded constituted the family offense of criminal obstruction of breathing or blood circulation (Penal Law § 121.11[a];  Matter of Elizabeth F. v. Wilfredo F., 220 A.D.3d 615, 616, 197 N.Y.S.3d 226 [1st Dept. 2023]).  That petitioner submitted no evidence documenting her injuries is of no moment.

Petitioner further testified that after she ended the parties’ relationship and told respondent not to contact her, he nonetheless came to her apartment, kissed her, and “put his hands all over her body” without her permission.  This testimony is sufficient to support the court's conclusion that respondent committed the family offense of sexual abuse in the third degree (Penal Law § 130.55;  see Matter of Marta M. v. Gopal M., 212 A.D.3d 524, 525, 181 N.Y.S.3d 562 [1st Dept. 2023]).

Moreover, according to petitioner's testimony at the hearing, respondent continued trying to communicate with her through email, social media, and in person — including, for example, by approaching her in person at a professional event and making a suicide attempt outside her apartment door, despite petitioner's repeated requests to respondent to desist in his attempts to contact her.  This testimony, including respondent's acknowledgement that petitioner told him to stop contacting her, established that respondent committed the family offense of stalking in the fourth degree.  It cannot be seriously argued that respondent was not “clearly informed” to stop contacting petitioner, and the record establishes that petitioner's mental and emotional health was materially harmed by respondent's conduct (Penal Law § 120.45;  see 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]).

The court credited petitioner's testimony while also finding that respondent's testimony was not credible.  These determinations are entitled to great deference, and we see no basis to disturb them (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];  Olson v. Olson, 157 A.D.3d 611, 611, 67 N.Y.S.3d 461 [1st Dept. 2018]).

Finally, the court's finding of aggravating circumstances in this matter — namely, the immediate and ongoing danger to petitioner from respondent's actions — warranted the issuance of a five-year final order of protection in petitioner's favor as reasonably necessary to provide meaningful protection (see Family Court Act §§ 827[a][vii];  842;  Matter of Anecia S.H. v. Grevelle D.B., 173 A.D.3d 441, 441, 104 N.Y.S.3d 601 [1st Dept. 2019];  Olson, 157 A.D.3d at 611, 67 N.Y.S.3d 461).