Papers Numbered Summons, Petitions, Affidavits & Exhibits Annexed 1 Post-Trial Summation of Petitioner 2 Summation by Respondent 3 Summation of the Attorney for the Child 4 MEMORANDUM DECISION This Court, having presided over the instant evidentiary Family Offense hearing for almost two years, having heard the parties and testifying witnesses, having examined the Petitions, motions and exhibits in evidence, and having perused counsels’ written summations and arguments, hereby makes the following findings of fact deemed established by the evidence and reaches these conclusions of law. I. Following a romantic relationship of several years after meeting on a New York City train in 2009, the Petitioner Cha-Kia B. (hereinafter “Mother”) and Respondent Mustafa M. (hereinafter “Father”) moved in and lived together in Brooklyn from November 2011 until May 17, 2018. They eventually got married in August 2015 and are the parents of one five-year old Child. Even before formalizing their union, Mother suffered from episodes of verbal, financial and physical abuse at the hands of the Father commencing in 2012. While there was at least one incident of domestic abuse per year, the severity and frequency of Father’s attacks against Mother intensified in the year 2018, when their relationship ended. As a result, by Petition dated May 17, 2018, the Mother commenced the instant Family Offense proceeding against Father pursuant to Family Court Act Article 8, alleging in her amended Petition that Father had committed the family offenses of attempted assault in the third degree, menacing, harassment in the second degree, sexual misconduct, forcible touching, strangulation and criminal obstruction of breathing or blood circulation, and alleging aggravating circumstances in seeking a long-term Order of Protection. Mother alleged that Father has engaged in a course of conduct and pattern of behavior which have caused increasing fear and injuries to both her and their Child. Based upon Mother’s allegations, on May 17, 2018, the Family Court (Ross, J.H.O.) immediately issued a Temporary Order of Protection excluding the Father from the residence and directing him, among other things, to stay away from the Mother and the Child, her home and place of employment, refrain from harassing, assaulting, stalking, intimidating or committing any criminal offense against them, and to refrain from communicating with her. Reflexively, by Petition dated May 22, 2018, the Father also commenced a Family Offense proceeding against the Mother, claiming that she has hit and slapped him and suffers from mental issues. Although Father initially obtained a Temporary Order of Protection (Waldeier, R.) against her, this Court vacated that Temporary Order of Protection on June 15, 2018. The parties have also filed cross Petitions for Custody, which are currently sub judice, resulting in Temporary Orders of Custody in Mother’s favor with Father having overnight visitation with the Child on alternate weekends, vacations and holidays. This visitation was granted over the objection of the Attorney for the Child who initially preferred Father to only have supervised visitation. On at least two occasions, Mother had successfully applied for Writs of Habeas Corpus as a result of Father wrongfully retaining the Child without her permission and to her exclusion. This Court has continuously extended the full stay-away Temporary Orders of Protection against the Father. Since there was no agreement to settle the cross-Family Offense proceedings, the matter proceeded to a lengthy and contentious trial which spanned almost two years, and which required the appointment of three different County Law 18-b counsel for the Father. II. At trial, the Mother testified credibly, consistently and emotionally during her case in chief to several episodes of domestic violence at the hands of Father which happened throughout the years of their relationship, several of which occurred in the presence of the infant Child. Even before they married, in the Fall of 2014, Mother testified about an incident during an argument between the parties in the hallway of their apartment wherein Father grabbed her by her hair, pulled “chunks of hair” and yanked her back and forth in a fit of anger — a type of assault which became the Father’s modus operandi. As a result of this assault, the Mother described that her scalp was so tender that she was unable to comb it for five or six days, suffered from pain in her neck and her hair started to fall out. Further, the Mother was “embarrassed,” “ashamed,” and felt as if the father “didn’t love [her].” However, Mother explained that Father “apologized” and “assured” her that such an incident would never happen again, and she believed him. The Mother next testified to a particularly terrifying incident which occurred in March 2016, when, during an argument between the parties, the Father charged into the bedroom, wrapped his hands around her neck, applied pressure and pushed her onto the ground with his hand still around her neck. In particular, the Mother emotionally detailed that: It felt like my throat was going to cave in and I was trying to do whatever I could to remove his fingers from around my neck. And I remember being just dizzy and not being able to breathe…I felt as though he was going to kill me. I was afraid, very scared. Yeah, very — and very disappointed. And I felt alone…I had a hard time breathing once he let go. I was seeing like stars. I was lightheaded. And his — his — the fingers’ prints of his hands w[ere] actually around my neck. Ultimately, Father let go of Mother when the infant Child, who had been asleep, woke up crying, and she went to retrieve him. She testified that the Father followed her, came from behind to grab her hair and pulled her down to the floor, while she was holding the four-month old Child. She testified that because of this incident her scalp hurt and that her hair was falling out both for about one week. Further, “discolored” marks from Father’s fingerprints remained on the side of her neck for approximately a day. Another incident happened in June 2016, the Mother testified that during another argument at their house, the Father called her a “bitch,” came up from behind and grabbed her arms so hard that he left marks and bruises in her extremities, which injuries were visible that day by her friend and U.S. Postal Service co-worker, Krystal Victor-Gammon. Ms. Victor-Gammon corroborated this incident by testifying that she heard the parties having a serious dispute while she was on the telephone with Mother, heard a “slap,” the phone got disconnected and she was scared that the Mother was hurt, so she called her back repeatedly. The witness further testified that the Mother called her back 45 minutes later sounding scared and crying, and that she picked her up after the incident and observed the red grabbing marks on the underside of Mother’s arm, which she photographed. The Mother credibly testified that these incidents of domestic violence made her feel embarrassed and ashamed, and she was afraid of seeking medical attention or police intervention in fear that Father’s behavior would only worsen or escalate. Just two months elapsed after the June incident, when during a “misunderstanding” in their automobile in August 2016, Mother stated that the Father yelled at her, called her a “bitch,” pointed his fingers at her face, poked her and repeatedly spat at her, while the Child was sleeping on the back seat. When she spat back at him, he reached out and forcefully punched her in the nose causing “blood [to] just start[] gushing like a fountain from [her] nose” and fall down her face into her blouse. When the Mother exited the car and went to the back door to retrieve the Child from the backseat to go to a nearby hospital, Mother testified that the Father unexpectedly drove the car off down the street. She proceeded to state that he then stopped the car and began running after her, leaving their nine-month old Child in the car by himself. After the parties returned home, Father forced the Mother to have “make up” sexual relations with him, despite her opposition and protestations. The next day, Mother sought medical attention for her nose at Interfaith Hospital and suffered from a swollen, bloody and red nose for about one week. This incident and the extent of her injuries were also corroborated by Ms. Victor-Gammon in her testimony. The next year in August 2017, Mother testified to another heinous attack when, during another argument at their home, Father called her a “dyke-bitch,” “bitch” and physically hurt her by pulling her hair, hitting her in the back, biting her shoulder and arm, digging his nails into her breast and her thighs and punching her in the arm. On that occasion, the Mother testified that her then two-year old Child was sleeping, woke up and intervened as Father was hitting and spitting on her, and jumped on top of the Mother to protect her and yelled “no, no, no” to the Father. Ms. Victor-Gammon testified that the Mother informed her of this incident where the Child intervened saying “no, stop, don’t hit mommy.” Into evidence were admitted photographs taken by Mother herself showing the injuries resulting from this assault, including scratches and bruises to her breast, thighs and arms which did not heal until weeks later as corroborated by Ms. Victor-Gammon, which saw them herself. Although there was apparently peace in their household for approximately six months, the Mother testified about another incident of domestic violence which occurred in February 2018. Mother explained that the Father and his friend, Ms. Alicia Allen Kennerly, who was visiting from Maryland, went to a family gathering together, while the Mother remained at home with the Child. They returned late to the parties’ home at around 5:00 a.m. Both the Mother and Ms. Kennerly testified that the parties had a heavy argument because their late arrival and loudness threatened to wake up the Child. Mother testified that Father, who was drunk, then followed her to the bathroom where he violently grabbed her by the hair and started punching her in the head and slapping her in her face. The Child woke up during the incident and Ms. Kennerly grabbed the Child and pick him up, apparently to calm him down. As a result of this physical attack, Mother testified that: I had a bad headache for a very long time. It was intense. Like I was very sensitive to light, and it didn’t go away, but it would be pounding and then would ease up, but the pain was still there and it would do that. For about a week and a half I went through that. The final incident prior to the filing of the Petition pointedly occurred in Mother’s Day on the early morning hours of May 14, 2018. Mother affirmed that they went to visit the Paternal Grandmother, Keturah Aris, who was convalescing for a kidney transplant at Mount Sinai Hospital to wish her a happy Mother’s Day that evening. Apparently because their Child had barged into the bathroom with Father, the parties had another verbal altercation when they were leaving the hospital room. By the hospital’s staircase, the Father threatened “to slap the shit out” of Mother, turned around and did slap her across her face while she was holding the Child’s hand. Mother reported this incident to a hospital security guard who called the NYC Police Department, which came and took her report, as confirmed by the Domestic Incident Report admitted into evidence. Father had previously escaped with the Child to go home when he saw Mother talking to the security guard. Shortly thereafter, Mother commenced the instant Family Offense proceeding against him. Although Mother completed her case in chief in a relatively expeditious manner despite hearing from her and her witness, the Father’s case took over one year during which time he engaged in a pattern of obfuscation of the issues at hand by attempting to bring a panoply of custody and visitation matters outside the purview of the family offense proceeding. Valuable trial time for the family offense had to be set aside for his self-created visitation problems and endless applications for more visitation with the Child. Those applications for more time with the Child appear to demonstrate the Father’s denial and cynicism given the fact that this Court was simultaneously listening about the horrific acts of domestic violence committed by him against the Mother, many in front of the Child, which would necessarily and negatively affect his parental access rights (see Matter of Alintoff v. Alintoff, 141 AD3d 518, 519). After the Mother rested her case in chief, Father’s testimony in his defense consisted mainly of blanket denials, claiming that none of the attacks upon Mother ever occurred. The Father’s principal defenses amounted to claims that Mother displayed belligerence and bad temper towards him and indulged in heavy drinking on a daily basis, as he and the Paternal Grandmother attempted to portray her in their testimony. Understandably, the Grandmother supported Father’s claims of Mother’s purported alcoholism by testifying that she had seen Mother drinking every day, saw a bottle of an unknown alcohol in her purse and was “mumbling and stumbling over her words” at the hospital albeit being “bubbly,” “happy and jolly” on Mother’s Day in 2018. However, on cross examination, the Grandmother evasively testified that she did not recall speaking in June 2018 to a representative from the NYC Administration for Child Services whose report of Grandmother’s statements makes no mention of heavy alcohol usage, any discord or serious problem with the Mother or her parenting skills. Among his most memorable statements, the Father testified to an convoluted story about the incident in his automobile in August 2016, of them going to the grocery store for “WIC” things; driving for over six hours with Mother, the Child and their groceries; picking up his best friend, Latoya Hall; and dealing with the Mother’s alleged drunkenness and disrespect throughout the car ride. The Father explained that he enlisted Ms. Hall to help him unload the groceries and the Child, who was in his car seat, from the car, because the Mother was “highly intoxicated” after drinking a bottle of tequila. Although the Father claimed that Ms. Hall had seen the Mother’s drunkenness and aggressive behavior towards him in his car, she was never called in to testify as a witness to support his version of the events. Nor did his witness friend, Ms. Alicia Kennerly, who testified that she was present when the parties had the argument at their place in February 2018, corroborate any claimed aggressive behavior or drunkenness by Mother. To the contrary, Ms. Kennerly said that the parties argued for around an hour because the Mother was a “little irritated” after their late arrival from the party and that the Child woke up during the incident, thereby contradicting Father’s testimony that he went straight to bed without causing any trouble. Ms. Kennerly candidly testified that she consoled and spoke to the Mother that evening for almost one hour, and tellingly, empathized with Mother on the next morning of the attack when she noticed that Mother was depressed and that her hair was matted and uncombed. Following these testimonies by the parties and their witnesses, the parties through counsel rested their case. At their request, the Court afforded counsel the opportunity to submit written summations to the Court. The Summations by the Mother, the Father and the Attorney for the Child were duly received and carefully perused by the Court prior to December 2, 2020, when the Court issued its Decision and Order from the bench in virtual court, and now complements with this Memorandum Decision. III. Family Court Act §832 provides that a petitioner alleging the commission of a family offense must prove the allegations at a fact-finding hearing “by a fair preponderance of the evidence” for the purpose of obtaining an Order of Protection (Matter of Zhuo Hong Zheng v. Hsin Cheng, 144 AD3d 1166, 1167 [2nd Dept. 2016]; see Matter of Kiani v. Kiani, 134 AD3d 1036, 1037 [2d Dept. 2015]; see Matter of Tulshi v. Tulshi, 118 AD3d 716 [2d Dept. 2014]). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record” (Matter of Crenshaw v. Thorpe-Crenshaw, 146 AD3d 951, 952 [2d Dept. 2017]; Matter of Konstantine v. Konstantine, 107 AD3d 994 [2d Dept 2013]). “Great deference is given to the Family Court’s credibility determinations, as it is in the best position to assess the credibility of the witnesses having had the opportunity to view the witnesses, hear their testimony and observe their demeanor” (Matter of Ava A. [Steven A.], 179 AD3d 666, 669 [2nd Dept. 2020]; see Matter of Magana v. Delph, 163 AD3d 673 [2nd Dept. 2018]). Applying these legal principles to the matter at bar, this Court finds that Mother has established by a fair preponderance of the evidence that Father’s actions met the elements of multiple family offenses committed against her. This Court “was presented with sharply conflicting accounts by the parties regarding the subject events” with Mother testifying to serious and terrifying acts of domestic violence while the Father plainly denied the occurrence of any family offenses (Matter of Mohammed v. Mohammed, 174 AD3d 651, 615-616 [2nd Dept. 2019]). The Court finds that the Mother and her witness, Ms. Victor-Gammon, testified in a credible and consistent manner to the escalating violence perpetrated against her, as opposed to the Father and his witnesses, who were not credible and merely engaged in blanket denials (see Matter of Luke v. Luke, 72 AD3d 689 [2nd Dept. 2010]). Faced with Mother’s testimonial, documentary and photographic evidence, the Father did not even attempt to explain how Mother sustained her repeated injuries, swollen nose, bite marks and bruises evidenced by photographs of her bruised body, her hair loss and testimony of a “fountain” of blood gushing out of her nose and bloody soaked clothing. The Father’s principal claims that the Mother had a bad temper and drank excessively lacked credibility and sounded hollow. Among the family offenses alleged in the Amended Petition, this Court first finds that the Father committed at least four counts of the family offense of harassment in the second degree (see Penal Law §240.26; Matter of Frimer v. Frimer, 143 AD3d 895, 896 [2d Dept. 2016]). “A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 1. He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” (id.). “The intent element of the offense of harassment may be inferred from conduct as well as the surrounding circumstances” (People v. Kelly, 79 AD3d 1642 [4th Dept. 2010], lv denied 16 NY3d 832 [2011]; see Matter of Shephard v. Ray, 137 AD3d 1715 [4th Dept. 2016]). The credible testimony here revealed that Father has engaged in a continuous pattern of verbal and physical behavior since 2014, which has become worse and escalated with the years until 2018. This Court finds that, with intent to harass, annoy and alarm, Father has terrorized the Mother in front of the Child by constantly screaming and belittling her, calling her vile names like “bitch,” “dyke-bitch,” “dumb” and fat; he has grabbed, pulled and yanked her hair on at least three separate occasions; he spat at her twice; and he had slapped her face several times in fits of anger in front of the Child. The credible evidence presented at the hearing further established that, on multiple occasions, Father engaged in threatening behavior, which served to “alarm or seriously annoy the petitioner” and served no legitimate purpose (Penal Law §240.26[3]; see Matter of Frimer v. Frimer, 143 AD3d at 896). For instance, in June 2016, the Father cursed at the Mother and said that he wished that the maternal grandmother would fall ill, while grabbing Mother’s arm so forcefully that she sustained pain and bruising for days. Father “intentionally and repeatedly harasses another person by following such person in or about a public place or places.” The Court finds that Father further harassed Mother by following her around on the public streets after punching her in the nose in August 2016, and also slapped her at the hospital in Mother’s Day in front of the Child in May 2018. All these behaviors created an atmosphere of fear, alarm and annoyance without any legitimate purpose other than to terrorize and disrupt the Mother’s peace and well-being as well as that of the Child. Secondly, the Mother has established that the Father committed the family offense of criminal obstruction of breathing or blood circulation pursuant to Penal Law §121.11, which requires a person “with intent to impede the normal breathing or circulation of the blood of another person, [to]: a. appl[y] pressure on the throat or neck of such person; or b. block[] the nose or mouth of such person.” Notably, there is no requirement that the offender cause pain, trauma, or injury (see People v. Bonney, 69 AD3d 1116 [3rd Dept 2010]). As to this crime, there was credible testimony by Mother that, in March 2016, Father wrapped his hands around her neck, applied pressure and pushed her to the ground, causing her to feel dizzy, unable to breath and thinking that he wanted to kill her. He only stopped his commission of the crime upon hearing the Child’s cries in the other room, which cries essentially saved his Mother’s life. Faced with Mother’s credible and detailed testimony, Father’s denial of this occurrence appears incredible. Thirdly, the evidence at the hearing sufficiently support a finding that the Father committed the family offense of assault in the third degree pursuant to Penal Law §120.00, which requires “(1) with intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person.” The Mother testified that, in August 2016, the Father repeatedly punched her in the nose while they were in their car, causing a “fountain of blood” to fall from her face and causing her to suffer a swollen, bloody and red nose for several days as evidenced on the cringe-causing photographs submitted into evidence. This assault was also corroborated by Ms. Victor-Gammon who saw Mother’s injuries at work. These results, taken in combination with the act of violence that caused them, amply support the reasonable inference that Father struck Mother with great force and caused an injury that was serious enough to rise to the level of “substantial pain” (see Matter of Kalyan v. Trasybule, ___AD3d___, 2020 NY Slip Op 07383 [2nd Dept. Dec. 9, 2020]; People v. Williams, 24 AD3d 187 [1st Dept. 2005] [trial evidence legally sufficient as to physical injury where defendant repeatedly punched victim, causing bruising, swelling and laceration]). Contrary to the Father’s contentions, the fact that Mother did not seek medical treatment or notify the police about each of the attacks did not discredit her testimony, as the lack of medical treatment or police intervention is but a factor to consider in resolving whether a party has proven a family offense or physical injury (see People v. Guidice, 83 NY2d 630, 636). As the Mother repeatedly stated, she was incredibly fearful of Father, and the possibility that reporting him to the authorities would only make matters worse and increase his violence towards her. Given their pattern of abuse and reconciliation, and the fact that the parties had the Child in common, whom Mother was attempting to protect, these appear to be reasonable explanations for her decisions. Moreover, even if there were any truth to Father’s exaggerated allegations of daily alcohol intake, Mother’s alleged alcohol consumption does not in any way excuse or clear the Father from the violent and frightening allegations of abuse. IV. In her Summation, the Mother asks for a finding of aggravating circumstances against the Father to support a final disposition of a five-year Order of Protection in her favor. Under Family Court Act §827(a)(vii), “Aggravating circumstances” is defined as “physical injury or serious physical injury to the petitioner caused by the respondent, the use of a dangerous instrument against the petitioner by the respondent, a history of repeated violations of prior orders of protection by the respondent, prior convictions for crimes against the petitioner by the respondent or the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences.” This Court finds that the evidence adduced at the hearing supports a finding of aggravating circumstances based on the above-described pattern of horrid and cowardly behavior of Father against Mother (see Matter of Royal v. Royal, ___AD3d___, 2020 NY Slip Op 06130 [2nd Dept. 2020]). There was substantial testimonial and documentary evidence to support such a finding based on the physical injuries sustained by the Mother (see Penal Law §10.00[9]; Matter of Kristine Z. v. Anthony C., 21 AD3d 1319, 1320-1321 [4th Dept. 2005]). Specifically, the Mother sustained physical injury to her nose and throughout her body. Father bruised, scratched and marked her arms, thighs and breast, and he pulled and yanked her hair out causing pain and tenderness in her scalp and neck for days. These injuries were visible in the photographs admitted into evidence and were corroborated by the testimony of Ms. Victor-Gammon. Finally, aggravating circumstances were also supported by the fact that Father committed some of the subject family offenses against the Mother in the presence of their Child during the incidents of March 2016 and August 2017 (see Goikhman v. Biton, 183 AD3d 704, 705-706 [2nd Dept. 2020]; Matter of Coumba F. v. Mamdou D., 102 AD3d 634 [1st Dept. 2013]). Not only did the Child observe some of those incidents, but in August 2017, he also jumped onto the Mother trying to protect her, yelling for the Father to stop hitting her. Clearly, the Child is capable of understanding these violent attacks and is old enough to assert himself against Father, which may further expose him to situations of danger. It is the Court’s deep concern that those violent behaviors observed by the Child of his Mother being attacked by his own Father may adversely impact the Child’s affective and social development as well as his physical and psychological wellbeing, both in the short — and long-term basis. As a result, this Court must issue an Order of Protection against the Father “to stop the violence, end the family disruption and obtain protection” for the Mother and the Child in her custody (Family Court Act §841; see Matter of Jose M. v. Angel V., 99 AD3d 243, 249 [2d Dept. 2012]). V. In accordance with the foregoing, the Court grants the Mother’s Family Offense Petition against Father and issues forthwith a five-year, full stay-away Final Order of Protection in her favor and against the Father, among other things, excluding him from the marital residence; directing him to stay away from the Mother, her home and place of employment; ordering him to refrain from harassing, assaulting, stalking, menacing, forcibly touching, intimidating or committing any criminal offense against her; to refrain from communicating with her, except for court-ordered custody and visitation issues; and prohibiting him for obtaining a license to carry weapons of any kind. Contrary to the requests by the Mother and Attorney for the Child, this Court finds that no family offense has been committed against the Child at this time to warrant an Order of Protection in his favor. However, the Court will remain vigilant of the Father during the custody and visitation proceedings should it need to revisit this decision in the best interests of the Child. This constitutes the decision and order of the Court. NOTICE: Pursuant to Section 1113 of the Family Court Act, an appeal from this Order must be taken within 30 days of receipt of the Order by Appellant in Court, 35 days from the date of mailing of the Order to the Appellant by the Clerk of Court, or 30 days after service by a party or the Attorney for the Child upon the Appellant, whichever is earliest. Check applicable box: Order mailed on (specify date[s] and to whom mailed):__ Order received in court on (specify date[s] and to whom mailed):__ Dated: December 11, 2020
