STATEMENT OF
QUESTIONS INVOLVED
Point One
Whether an Intimate Relationship existed between the Petitioner and Respondent such that the Family Court had subject matter jurisdiction to hear the Petitioner’s petition?
Answer of the Court below: Yes.
Point Two
Whether the evidence set forth by Petitioner-Respondent was sufficient to prove, by a fair preponderance of the evidence, that the Respondent-Appellant committed the Family Offense of Attempted Assault in the Third Degree?
Answer of the Court Below: Yes.
Point Three
Whether the evidence set forth by Petitioner-Respondent was sufficient to prove, by a fair preponderance of the evidence, that the Respondent-Appellant committed the Family Offense of Disorderly Conduct?
Answer of the Court Below: Yes.
Point Four
Whether this Appeal is academic in light of the passage of time since the decision of the Family Court below was rendered?
Answer of the Court Below: No.
STATEMENT OF THE
NATURE OF THE CASE
AND NECESSARY FACTS
The Family Relationship
The Petitioner-Respondent is the paternal aunt, and foster parent of the Respondent-Appellant’s son Noel S, DOB: 10/26/2012.
Petitioner-Respondent’s Testimony:
The Attempted Assault
The Petitioner-Respondent testified in support of her petition on August 15, 2014. According to the testimony of the Petitioner-Respondent, on October 29, 2013, the Respondent-Appellant was attending a supervised visit with Noel, who was one year old. The attending therapist terminated the visit early, and summoned the Petitioner-Respondent to retrieve the child from the Respondent-Appellant. According to the Petitioner-Respondent, “When I arrived I grabbed Noel and she (Respondent-Appellant) tried to charge at me and punch me.” (Trans. 8/15/2014, P.7[1]). The Petitioner-Respondent attempted to expand upon her account of the incident by stating the following: “I was told to come and pick up the child, I went upstairs to the therapist’s office, and that’s when I grabbed Noel and that’s when she tried to hit me.” (Trans. 8/15/2014, P.8).
The Petitioner-Respondent went on: “She rushed herself towards me…she tried to lean toward – like punch me…she was throwing her fist.” (Trans. 8/15/2014, P. 9-10). The Petitioner-Respondent testified that she was holding the Child, Noel S., in her arms when this occurred. (Trans. 8/15/2014, P. 9 and P.10).
Petitioner-Respondent’s Testimony:
The Threatening Statements
The Petitioner-Respondent testified that on October 30, 2013, she received numerous phone calls from the Respondent-Appellant, who was very upset (Trans. 8/15/2014, P.10), and Respondent-Appellant stated to her that “she was going to come to my fucking house and fuck me up…I was not going to stay with Noel, that she was going to take her baby back.” (Trans. 8/15/2014, P.11).
The Petitioner-Respondent also testified that, on one occasion, when she delivered Noel for a visit he had a scratch on his face, and the Respondent-Appellant questioned her very aggressively and stated, “What the fuck happened to my son.” The Petitioner-Respondent could not recall the exact date of this incident, but recalled that it occurred “around the same time frame, in October.” (Trans. 8/15/2014, P.12).
Motion to Dismiss
The Petitioner-Respondent called no further witnesses in support of her petition, and produced no other evidence. At the conclusion of the Petitioner-Respondent’s testimony, counsel for the Respondent-Appellant made an application to dismiss the petition for failure to set forth a prima facie case. Counsel raised the fact that the Petitioner-Respondent failed to offer any testimony or evidence regarding the relationship between the parties that would give the Family Court subject matter jurisdiction. The presiding judge made the following record in dismissal of the application:
There is a family relationship here and this was never disputed at the extensive Article 10 proceedings that I presided over with all the same parties and all the same counsel. It’s been well established that Ms. Redacted’s brother is the child’s father. It’s been well established that there has been an ongoing family relationship and it’s not through marriage. They do not, you know, but I think through the definition of intimate partner as, although a layman would not consider this an intimate relationship but within the definition of the statute and the way the case law is interpreted I think there is jurisdiction.
(Trans. 8/15/2014, P. 19).
Respondent-Appellant’s Testimony:
The Attempted Assault
The Respondent-Appellant testified in her own defense. The Respondent-Appellant recalled that on October 29, 2013, the father of Noel, who is also the brother of the Petitioner-Respondent, accompanied the Respondent-Appellant to the supervised visit with Noel. Although the record does not state why, the presence of the child’s father caused the visitation center personnel to terminate the visit, and call the police. The Respondent-Appellant testified that the Petitioner-Respondent “came back and I had my son in my hands. She took him out of my hands.” (Trans. 8/15/2014, P. 21).
The Respondent-Appellant further testified:
She came upstairs and she grabbed my son out of my hand.
Question: What happened after she grabbed your son out of your arms?
Answer: We had got into a big argument and the cops escorted me out the building. They told me do not come back in the building or they was gonna lock me up.
Question: And what did Ms. Redacted – when you say you got into a big argument, what did she say and what did you day?
* * * * * *
Answer: Well we both said “F” you. And all this other crazy stuff. That was it.
Question: And where was Noel?
Answer: He was in her arm while she was (inaudible) to me.
Question: So, it’s your testimony that she took him from your arms and was holding him?
Answer: That’s correct.
Question: You heard Ms. Redacted testify that you lunged at her with a punching motion as if you were going to hit her. What do you have to say about that?
Answer: I think that’s a lie. Because I (inaudible) do that if I had – if she had my son in her hand. I think that’s disrespectful. I would not do that.
(Trans. 8/15/2014, P. 22-23).
During cross examination, the Respondent-Appellant further testified regarding this incident as follows:
Question: Now, on October 29th, when you went to the agency for the therapy, you were angry at Ms. Redacted, weren’t you?
Answer: That’s correct.
Question: And you were angry because you didn’t want her take your child from you, is that correct (sic)?
Answer: That’s correct.
Question: And it’s your testimony that when she told the Court that you formed your hand into a fist, and attempted to punch her, that that didn’t happen?
Answer: No, that’s correct. Why would I punch her in the face. Why would I try to attack her if she had my son. That makes no sense. I would not do that to nobody. If that was the case, if – if the cops – when the cops came how come she didn’t tell the cops. I would have been arrested. I didn’t get locked up. So that’s a lie.
Question: Well, your testimony earlier was you said I think that’s a lie.
Answer: No, I know it’s a lie. Because why would I try to attack somebody if she had my son, that makes no sense.
Question: But you are angry at her?
Answer: Yes, I was angry because she cut my son hair without my permission (sic).
Question: She did what?
Answer: She cut my son’s hair without my permission. She (inaudible) this day cutting his hair without my permission.
Question: And that made you angry (inaudible)?
Answer: That’s correct.
Question: And did you – were you yelling at her?
Answer: I didn’t say anything to her about (inaudible). I didn’t say anything. I said (inaudible) to the dyadic therapy about it.
Question: In front of Ms. Redacted?
Answer: No. Ms. Redacted was (inaudible) when I said that.
(Trans. 8/15/2014, P.26-27).
Respondent-Appellant’s Testimony:
The Threatening Statements
The Respondent-Appellant testified as follows:
Question: Ms. Redacted also testified that there was a phone call made the day after dyadic therapy incident?
Answer: I – that’s true. She did say that.
Question: What do you have to say about the phone call?
Answer: What I have to say about that, that was not me calling her phone. She was the one who called my phone a couple of times and she called me my phone restricted (sic). I’m like, whose calling my phone? Whoever is calling my phone can you please say something. That’s when she started (inaudible) all this. Disrespectful so, I told (inaudible) you will never see your son again (inaudible).
Question: And that’s the extent of the conversation?
Answer: That’s it. And I hang up the phone and she kept on calling. That was when I called the phone. I didn’t have that phone no more.
(Trans. 8/15/2014, P. 24-25).
During cross examination, the Respondent-Appellant further testified regarding this incident as follows:
Question: On October 30th, isn’t it true that you made a phone call to Ms. Redacted?
Answer: I don’t recall.
Question: Well, do you recall her testifying that you’ve called her on October 30th?
Answer: Well, that’s what she said. I don’t recall. I don’t think I did.
Question: Do you remember her saying that she – you threatened to – to fuck her up over the phone?
Answer: I did not say that. I recall what he said, ‘cause I was here when she said it. But I did not do say that (sic).
Question: What did you say to her on October 30th?
Answer: I didn’t even call her. I (inaudible) she’s talking about.
Question: So did – she just made that up?
Answer: Yeah, ‘cause she’s a liar.
Question: And on October 30th, were you still angry at Ms. Redacted?
Answer: Of course I might be angry. She has my son.
(Trans. 8/15/2014, P.27-28).
The Decision
Of the Court
The Court ruled on the record as follows:
I will find that the credible evidence at this trial supports a finding of a family offense based upon the allegation that on October 29th, Ms. Redacted attempted to punch Ms. Redacted at the office where the dyadic therapy was taking place. And that on October 30th, she called her in to make threatening statements, on numerous occasions.
The evidence…does make out the prima facie elements that – of based upon the October 29th incident and the – which is corroborated by the threatening statements that were made in different – different conversations. The crimes of attempted assault in the third degree, Penal Law Section 110/120.00 paragraph 1, and disorderly conduct, given that it was in a public setting – on the same date (sic).
And although I’m not deciding for the purposes of this hearing whether or not the statements made over the phone constitute harassment in view of the recent Appellate decisions regarding this statute, it certainly is probative and relevant regarding motive. So I am accepting it for the purpose of supporting the allegation regarding the October 29th incident.
So, based upon the ongoing orders and – on the neglect case, the order – I will issue a final order of protection on this case on behalf of Ms. Redacted directing that Ms. Redacted not have any contact with her and stay away from her for a period of two years.
(Trans. 8/15/2014, P.31-32).
ARGUMENT
POINT ONE
The Petitioner-Respondent Failed
To Establish the Existence of an
Intimate Relationship
The Legal Issues
- Same Family or Household:
F.C.A. §812(1) states:
Jurisdiction. The family court and the criminal court shall have concurrent jurisdiction over any proceeding concerning acts which would constitute (an offense specified in this paragraph) between spouses or former spouses, or between parent and child or between members of the same family or household (emphasis added).
* * * * * * *
For purposes of this article, members of the same family or household shall mean the following:
(e) Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.
- Burden of Proof:
The allegations in the petition in a family offense proceeding seeking the issuance of an order of protection must be supported by “a fair preponderance of the evidence,” Patton v. Torres, 38 A.D.3d 667 (2nd Dept. 2007), citing F.C.A. §832. See also Hasbrouck v. Hasbrouck, 59 A.D.3d 621 (2nd Dept. 2009).
- Lack of Subject Matter Jurisdiction is a Non-Waivable Defect:
In the Matter of Anstey v. Palmathier, the Court ruled as follows on the issue of Subject Matter Jurisdiction: “Respondent contends that Family court lacked subject matter jurisdiction, and accordingly, the petition must be dismissed. While this contention was not raised in Family Court, inasmuch as it implicates Family Court’s subject matter jurisdiction, it is not waivable and we therefore will consider it,” Id., 23 A.D.3d 780 (3rd Dept. 2005).
Argument – Point One
In the case at bar, the Petitioner-Respondent’s attorney failed to elicit any testimony regarding the nature of the relationship that would provide the Family Court with subject matter jurisdiction. Respondent-Appellant’s attorney raised the defect at page 16 of the transcript dated August 15, 2014, as part of an application for dismissal. Even if the Respondent-Appellant’s attorney had failed to do so, a subject matter defect is non-waivable. Denying the motion to dismiss, the judge, relying upon his review of separate Article 10 proceedings, imputed into the record evidence that had not been offered by the either of the litigants.
There is simply no precedent, or authority for a Family Court Judge to do this. As a the Family Court, Queens County, stated in The Matter of Aaron H. v. James G. and Mike G., 35 Misc.3d 1219 (N.Y. Fam. Ct. 2012), “Orders of Protection are not available merely for the asking, and there are specific rules which apply to the commencement and trial of family offense cases.” Those rules were circumvented in this case.
Conclusion – Point One
For all of the reasons set forth above, the decision of the Court below, and the Order of Protection issued by the Court, should be vacated, and the petition dismissed with prejudice for lack of Subject Matter Jurisdiction.
POINT TWO
The Petitioner-Respondent Failed
To Set Forth Evidence
Sufficient to Prove
By a Fair Preponderance of the Evidence
That the Respondent-Appellant
Committed the Family Offense
Of Attempted Assault in the Third Degree
The Legal Issues
Standard of Proof
At a fact finding hearing pursuant to Article 8 of the Family Court Act, “Only competent, material and relevant evidence may be admitted.” Family Court Act §834. Further, “To support a finding that a respondent has committed a family offense, a petitioner must prove his allegations by a fair preponderance of the evidence.” Everett v. Oneida, 61 A.D.3d 489 (1st Dept. 2009), Family Court Act §834.
“New York courts have traditionally described this standard (Preponderance of the Evidence) in terms of weight: the evidence favoring the party with the burden of proof must outweigh that which favors the opponent” (Robert A. Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts §3:9 at 90 [5 West’s NY Prac Series 2001]). “A preponderance means the greater part of the evidence…The phrase preponderance of the evidence refers to the quality of the evidence, its weight, and the effect that it has on your minds” (PJI 1:60).
Definition of Assault
Assault in the third degree, pursuant to Penal Law §120.00 (1), requires the following:
A person is guilty of assault in the third degree when:
(1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person.
Definition of Attempt
The Anticipatory Offense of Attempt, pursuant to Penal Law §110.00, requires the following:
A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.
In the case of People v. Rizzo, 246 N.Y. 334, at 337 (1927), the Court of Appeals explained the Anticipatory Offense of Attempt as follows:
The law, however, had recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and therefore considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference. The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime.
In the case of People v. Mahboubian, 74 N.Y.2d 174, 190 (1989), the Court of Appeals discussed:
The preexisting requirement that an attempt come very near to the accomplishment of the intended crime before liability could be imposed. Thus, the precise issue presented is whether defendants’ conduct came very near or dangerously near completion of (the crime).
[citing People v. DiStefano, 38 NY2d 640, 652(1976); and People v. Rizzo, 246 NY 334, 338(1927)].
Finally, in the case of People v. Acosta, 172 A.D.2d 102, 578 NYS2d 525, 527 (1st Dept. 1991), the First Department citing Rizzo, DiStefano, and Mahboubian, stated:
The Court of Appeals has recently fortified the “so near” rule (Rizzo) and the “very near” rule (DiStefano) so as now to require the defendant’s conduct to come “dangerously near” completion of the criminal endeavor before the boundary is reached where preparation ripens into punishable conduct
Argument – Point Two
In the case at bar, the only evidence offered to show the extent to which the Respondent-Appellant drew “dangerously near” the completion of the crime of assault is the following:
- She rushed herself towards me (Trans. 8/15/2014, P.9, Line 14);
- She tried to lean toward – like punch me (Trans. 8/15/2014, P.9, Line 19);
- She was throwing her fist (Trans. 8/15/2014, P.10, Line 4);
- Question: She was very close: Answer: yes (Trans. 8/15/2014, P.10, Line 11-12);
- Question: You remember that she came lunging at you? Answer: Once I grabbed the child, correct (Trans. 8/15/2014, P.15, Line 7 – 9);
There is simply nothing in the evidence set forth above to indicate that the Respondent-Appellant had the intent to cause a physical injury, or that she came “dangerously close” to causing such injury to the Petitioner-Respondent. Further, there is nothing about the allegedly threatening statements that were allegedly made in different conversations (see Trans. 8/15/2014, P.31, Line 16 – 25), that cures this legal infirmity.
Conclusion – Point Two
For all of the reasons set forth above, the decision of the Court below, finding the Respondent-Appellant guilty of the Family Offense of Attempted Assault in the Third Degree, should be overturned.
POINT THREE
The Petitioner-Respondent Failed
To Set Forth Evidence
Sufficient to Prove
By a Fair Preponderance of the Evidence
That the Respondent-Appellant
Committed the Family Offense
Of Disorderly Conduct
The Legal Issues
Definition of Disorderly Conduct
For the purposes of the case at bar: A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
- He engages in fighting or in violent, tumultuous or threatening behavior; or
- He makes unreasonable noise; or
- In a public place, he uses abusive or obscene language, or makes an
obscene gesture.
(Penal Law, §240.20).
Public Inconvenience,
Annoyance or Alarm
In the case of People v. Munafo, 50 N.Y.2d 326 (1980), the Court of Appeals declared, AThe clear aim was to reserve the disorderly conduct statute for situations that carried beyond the concern of individual disputants to a point where they had become a potential or immediate public problem. In deciding whether an act carries public ramifications, courts are constrained to assess the nature and number of those attracted, taking into account the surrounding circumstances, including, of course, the time and the place of the episode under scrutiny.”
Id, at 331.
In the case of People v. Pritchard, 27 N.Y.2d 246 (1970), the Court held,
This purely personal clash and momentary teenage flare-up did not contain the seeds of such a crowd reaction nor did it attain the degree of gravity warranting criminal prosecution under the (Disorderly Conduct) statute.
Id., at 249.
In the case of People v. Broadbent, 20 Misc.2d 547, (Co. Ct., Oneida, 1959), the court held,
Private annoyances, however exasperating or reprehensible, are insufficient in law to constitute a violation of the disorderly conduct section where no breach of the peace has resulted.
Id., at 548.
In the case of People v. Baker, 20 NY3d 354 (2013), the court of Appeals found the proof insufficient to support a charge of Disorderly Conduct:
There is no record basis for the finding of probable cause in this case because the proof is insufficient to support the public harm element. During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. It is clear from the videotape that the public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct—defendant was stepping away from the vehicle when he made them. And there is no basis to infer that Officer Johnson felt threatened by the statements.
Id., at 362.
In the case of Janice M. v. Terrance J., 96 A.D.3d 482 (1st Dept. 2012), the Petitioner testified:
That respondent, her son-in-law, threatened to have someone beat her up, told her that he would “beat [her] ass,” and threatened to hit her with a broom.
The Appellate Division in Janice M. ruled that the trial court:
Properly dismissed the charge of disorderly conduct since there was no evidence that respondent intended to cause public inconvenience, annoyance or alarm or that his conduct in the private residence recklessly created such a risk.
Id., 482-483.
Argument – Point Three
In the case at bar, the evidence is insufficient to support a finding of guilt by a preponderance of the evidence for the following reasons:
There is nothing in the evidence set forth to indicate that the dispute between the parties at the supervised visitation center “carried beyond the concern of the individual disputants to a point where they had become a potential or immediate public problem” [see People v. Munafo, 50 N.Y.2d 326 (1980)].
There is nothing in the evidence to indicate that the dispute was more than a “purely personal clash,” and “momentary…flare-up,” or that it contained “the seeds of such a crowd reaction,” or otherwise attained “the degree of gravity warranting criminal prosecution” [see People v. Pritchard, 27 N.Y.2d 246 (1970)].
There is nothing in the evidence to indicate that the Respondent-Appellant’s outburst, to the extent that it was public, was anything other than “extremely brief,” that it was “accompanied by menacing conduct,” or that the Petitioner-Respondent “felt threatened” [see People v. Baker, 20 NY3d 354 (2013)].
In short, there is nothing in the evidence set forth in the case at bar to support a finding of guilt of the Family Offense of Disorderly Conduct.
Conclusion – Point Three
For all of the reasons set forth above, the decision of the Court below, finding the Respondent-Appellant guilty of the Family Offense of Disorderly Conduct, should be overturned.
POINT FOUR
This Appeal
Is Not
Academic
The Legal Issues:
In the case of Cutrone v. Cutrone, 225 A.D.2d 767 (2nd Dept. 1996), the Court held, “although the order of protection excluding the appellant from the family residence has expired, in light of the enduring consequences which may potentially flow from an adjudication that a party has committed a family offense, we find that this appeal is not academic” [Id. at 769, citing Matter of Bickwid v. Deutsch, 87 N.Y.2d 862 (1995), and Matter of Williams v. Cornelius, 76 N.Y.2d 542 (1990)].
In the case of In re William A., 72 A.D.3d 587 (1st Dept. 2010), in which the Family Court adjudicated appellant a juvenile delinquent and imposed a conditional discharge, this Court held, “The fact that the term of the conditional discharge has now expired does not moot this appeal…as the stigma attached to the juvenile delinquency adjudication remains [Id. at 588, citing Matter of Bickwid v. Deutsch, 87 N.Y.2d 862 (1995)].
In the case of Paula A. v. Jose A., 60 A.D.3d 504 (1st Dept. 2009), this Court held, “Inasmuch as enduring consequences potentially flow from an order adjudicating a party in civil contempt, an appeal from that order is not rendered moot simply because the resulting prison sentence has already been served” [Id., citing Matter of Bickwid v. Deutsch, 87 NY2d 862, 863 (1995)].
Argument – Point Four
In the instant case, the Order of Protection at issue will likely have expired prior to a full adjudication of this appeal. Nonetheless, based upon the legal precedents cited above, “in light of the enduring consequences which may potentially flow from an adjudication that a party has committed a family offense,” this appeal is not academic [Cutrone v. Cutrone, 225 A.D.2d 767, 769 (2nd Dept. 1996)].
Conclusion – Point Four
For all of the reasons set forth above, this appeal is not academic.
FINAL CONCLUSION
For all of the reasons set forth above, the decision of the Family Court below holding that the Respondent-Appellant committed a Family Offense, and imposing a two year Order of Protection, should be reversed.
PRINTING SPECIFICATION STATEMENT
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Dated: November ____ 2015
___________________________
Michael F. Dailey
Attorney for Respondent-Appellant
One Riverdale Avenue
Suite One, Mailbox Eleven
Bronx, New York 10463
(718)543-0100
(email) mikedaileylaw@gmail.com
[1] Citations to the court transcripts will be made by setting forth the word “Trans.”, followed by the date upon which the testimony was given, followed by the letter “P” for page, and then the page number.
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