Matter of Irena K. v. Francesco S.

Summary

The Appellate Division, First Department modified a Family Court order finding that respondent committed several family offenses and granting a five-year order of protection. The court vacated the findings of assault in the second degree, criminal obstruction of breathing or blood circulation, and one count of sexual misconduct, while affirming findings of harassment, coercion, one count of sexual misconduct, and the order of protection.

Holdings

1. The findings that respondent committed harassment in the second degree and two counts of coercion in the second degree were supported by a fair preponderance of the hearing evidence.
2. The record supported only one count of sexual misconduct, requiring vacatur of one of the two sexual-misconduct findings.
3. The finding of assault in the second degree was unsupported because the evidence did not establish that respondent's teeth constituted a dangerous instrument or that he intended to cause serious physical injury.
4. The findings of two counts of criminal obstruction of breathing or blood circulation were unsupported because the evidence did not establish that respondent intended to impede petitioner's normal breathing or blood circulation.
5. The five-year order of protection was appropriate because aggravating circumstances constituted an immediate and ongoing danger to petitioner.

Questions Presented

1. Whether the evidence supported the Family Court's findings that respondent committed harassment in the second degree and coercion in the second degree.
2. Whether the evidence supported the finding of two counts of sexual misconduct.
3. Whether the evidence supported the finding of assault in the second degree based on respondent's biting petitioner's earlobe.
4. Whether the evidence supported the finding of two counts of criminal obstruction of breathing or blood circulation.
5. Whether the five-year order of protection was appropriate.

Disposition

other