IN RE: MADOCHEE F. (2023)

Order, Family Court, New York County (Jessica Brenes, Ref.), entered on or about August 20, 2021, which, after a fact-finding hearing brought under article 8 of the Family Court Act, found that respondent father committed the family offenses of assault in the third degree and harassment in the second degree and awarded petitioner mother a two-year order of protection directing the father to, among other things, stay away from her and the parties’ children except for supervised parenting time, unanimously affirmed, without costs.

The father was not denied due process when Family Court granted the mother's request and conformed the petition to the proof adduced at the fact-finding hearing, as he had a full and fair opportunity to contest the mother's testimony (see CPLR 3025;  Matter of Melinda B. v. Jonathan L.P., 187 A.D.3d 631, 631, 131 N.Y.S.3d 148 [1st Dept. 2020]).  Furthermore, there is no evidence in the record that the father was hindered in the preparation of his case (see Matter of Oksoon K. v. Young K., 115 A.D.3d 486, 487, 981 N.Y.S.2d 423 [1st Dept. 2014], lv denied 24 N.Y.3d 902, 2014 WL 4454914 [2014]).

A fair preponderance of the evidence supports Family Court's finding that the father committed the family offense of harassment in the second degree (see Matter of Giovanni De M. v. Nick W., 200 A.D.3d 517, 518, 155 N.Y.S.3d 312 [1st Dept. 2021];  Matter of Cheryl H. v. Clement H., 183 A.D.3d 533, 122 N.Y.S.3d 889 [1st Dept. 2020]).  The mother testified about three separate incidents between 2016 and 2020 in which the father slapped her, pushed her to the ground, kicked her, and hit her with a dust pan.  We reject the father's claim that there was insufficient proof of his intent, since intent is fairly inferable from his actions (see Matter of Brooke A.D. v. Rajiv D., 199 A.D.3d 407, 409, 158 N.Y.S.3d 6 [1st Dept. 2021]).

In addition, the mother's testimony that she was in pain and that her face and leg were swollen after the June 2020 incident is sufficient to establish that the father committed the family offense of assault in the third degree, as the mother's testimony concerning her injuries and resultant pain serves to establish the “physical injury” element of the offense (Penal Law § 120.00;  see also People v. Peters, 1 A.D.3d 270, 271, 767 N.Y.S.2d 433 [1st Dept. 2003], lv denied 1 N.Y.3d 632, 777 N.Y.S.2d 31, 808 N.E.2d 1290 [2004]).  The testimony also made clear that the mother's injury was not petty and rose past the level of mere “slight or trivial” pain (Matter of Genesis E.R. v. Jarel E.R., 190 A.D.3d 504, 504, 135 N.Y.S.3d 826 [1st Dept. 2021] [internal quotation marks omitted];  see Matter of Martha B. v. Julian P., 133 A.D.3d 418, 419, 18 N.Y.S.3d 529 [1st Dept. 2015]).  That the mother did not seek medical treatment does not discredit her testimony, as medical treatment is only one of the factors to consider in determining whether a party has established physical injury (see People v. Guidice, 83 N.Y.2 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994]).

We find no basis to disturb the Referee's credibility determinations (see Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 489, 878 N.Y.S.2d 301 [1st Dept. 2009]).