IN RE: F.L. H. (2026)

Order of fact-finding and disposition (one paper), Family Court, New York County (Alma M. Gomez, J.), entered on or about September 27, 2023, which, after a fact-finding hearing, found that respondent committed the family offenses of harassment in the second degree and reckless endangerment, and granted petitioner a one-year final order of protection against him, unanimously affirmed, without costs.

The court providently excluded respondent from the marital home to ensure petitioner's safety and well-being (see Family Ct Act §§ 828, 842[a];  Matter of V.C. v. H.C., 257 A.D.2d 27, 33–34 [1st Dept 1999] ).  At the exclusion hearing, the court had “ample opportunity to assess the parties' credibility and demeanor, and both parties had an opportunity to testify and subject each other to cross-examination” (Matter of M.M. v. R.G., 245 AD3d 517, 517 [1st Dept 2026] ).  The court's credibility determinations are entitled to deference, and there is no basis to disturb them here (see id.).  While it is true that the parties long lived in separate bedrooms within the marital home, petitioner's testimony that respondent was becoming increasingly aggressive, and that respondent threatened to starve her or kill her on March 30, 2022, and threatened to kill her before attempting to hit her with a metal rod on November 10, 2022, established that circumstances had changed and that his presence in the home presented a safety concern for petitioner.  Moreover, the court was permitted to draw a negative inference against respondent for failure to testify (see Matter of Nassau County Dept. of Social Serv. v Denise J., 87 N.Y.2d 73, 79 [1995] ).

The court providently exercised its discretion when it denied the request of respondent's assigned counsel to be relieved, given respondent's refusal to testify and sudden departure from the courtroom near the conclusion of the exclusion hearing, at which point respondent had already been excluded from the marital home for approximately 10 months (see Matter of Khan v. Dolly, 39 AD3d 649, 650 [2d Dept 2007];  see also Brothers v. Burt, 27 N.Y.2d 905, 906 [1970] ).

“As a corollary to the right to counsel, non-English speaking individuals have the right to an interpreter to enable them to participate meaningfully in their trial and assist in their own defense” (Matter of Er–Mei Y., 29 AD3d 1013, 1015 [2d Dept 2006];  see also People v. Perez, 198 A.D.2d 446, 447 [2d Dept 1993] ).  Here, the record does not bear out respondent's contention that his communication through interpreters during the exclusion hearing deprived him of the ability to understand and participate in the hearing.  Rather, the associated challenges reflected diligent efforts to ensure his ability to do so, the record does not establish any serious error or material deficiency in interpretation, and respondent did not raise this issue during the hearing.

Respondent's argument that he was deprived of due process because the court, upon petitioner's request, consolidated the exclusion hearing and the fact-finding hearing without sufficient notice is unpreserved as respondent's counsel did not object to the request at the time it was made (Matter of Elizabeth F. v. Wilfredo F., 220 AD3d 615, 616–617 [1st Dept 2023] ).  In any event, the argument is unavailing.  After petitioner's request, respondent's counsel asked that respondent be permitted to return to the marital home subject to a non-exclusionary final order of protection, undermining the contention that respondent lacked notice or an opportunity to be heard on the merits of the petition's allegations.  Petitioner represented that she would have offered the same testimony she gave at the exclusion hearing and respondent, on appeal, concedes that the subject matter of those hearings would substantially overlap.  Moreover, the exclusion hearing had the substantive components of a full evidentiary hearing as contemplated for a fact-finding hearing under article 8 of the Family Court Act (see Family Ct Act §§ 832, 834).

Although the court did not state whether respondent's conduct constituted first- or second-degree reckless endangerment, the record is sufficient to allow this Court to conclude from the fair preponderance of the evidence that his conduct of wielding a metal rod in close proximity to petitioner and attempting to strike her with it constituted reckless endangerment in the second degree (see Family Ct Act § 832;  Penal Law § 120.20;  Matter of Rebecca M.T. v. Trina J.M., 134 AD3d 551, 552 [1st Dept 2015] ).  Furthermore, he committed second-degree harassment by withholding food stamps from petitioner, repeatedly threatening to starve her to death or kill her, and, on November 10, 2022, blocking her from leaving her bedroom when she needed to use the bathroom, attempting to hit her with a metal rod, and kicking petitioner's leg (see Penal Law § 240.26[1], [3];  Matter of Cheryl H. v. Clement H., 183 AD3d 533, 533 [1st Dept 2020] ).