Matter of Martha B. v. Julian P.

133 A.D.3d 418, 18 N.Y.S.3d 529

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2015
• Docket: 16047
• Status: Published

Opinion

Order, Family Court, New York County (Fiordaliza A. Rodriguez, Ref.), entered on or about January 9, 2015, which, upon a finding that respondent committed the family offenses of disorderly conduct and assault in the third degree, granted the petition for an order of protection against him for two years, and ordered him to complete an anger management program, unanimously affirmed, without costs.

A fair preponderance of the evidence supports Family Court’s finding that respondent committed the offenses of disorderly conduct and assault in the third degree. The court’s credibility determinations are supported by the record and therefore entitled to deference (Matter of Winfield v Gammons, 105 AD3d 753 [2d Dept 2013]; Matter of Everett C. v Oneida P., 61 AD3d 489 [1st Dept 2009]). Evidence that on one occasion the husband attacked and threatened petitioner in the superintendent’s office in the apartment building where they lived supports the finding that he committed the family offense of disorderly conduct by recklessly creating a risk of public inconvenience, annoyance or alarm (Penal Law § 240.20 [1], [3]; see Matter of William M. v Elba Q., 121 AD3d 489 [1st Dept 2014]; Matter of Cassie v Cassie, 109 AD3d 337, 342-343 [2d Dept 2013]). The evidence that respondent’s attack caused bad bruising supports the determination that respondent committed the family offense of assault in the third degree. The “physical injury” element of that offense may be satisfied by relatively minor injuries causing “ ‘more than slight or trivial pain’ ” (People v Mercado, 94 AD3d 502, 502 [1st Dept 2012], lv denied 19 NY3d 999 [2012]; People v Martinez, 90 AD3d 409, 410 [1st Dept 2011], lv denied 18 NY3d 960 [2012]). Concur— Sweeny, J.P., Acosta, Richter and Manzanet-Daniels, JJ.