Parties were married on September 12, 2006. There are two children of the marriage, to wit: BK, born on XXX XX, 2007, and AK, born on XXX XX, 2009. (NY St Cts Filing [NYSCEF] Doc Nos. 7; 24).

On May 9, 2024, Plaintiff filed a petition in the Family Court of New York, Richmond County, (Docket #O-02592/2024) alleging that the Defendant had committed a Family Offense against her. (NY St Cts Filing [NYSCEF] Doc No. 9). An ex parte temporary stay away Order of Protection was issued on Plaintiff's behalf on the filing date. (see id). Plaintiff commenced this action for divorce by filing a summons with notice on May 14, 2024. (NY St Cts Filing [NYSCEF] Doc No. 1).

On June 24, 2024, Plaintiff filed Motion Sequence No. 001 by Order to Show Cause, which was signed by the Court on June 25, 2024. Among other relief, Plaintiff sought consolidation of the family offense matter bearing the caption CK v. LK, File No. XXXX, Docket No. O-XXXXX-24, filed in the Family Court of New York, County of Richmond into this proceeding and continuing all orders issued therein. (NY St Cts Filing [NYSCEF] Doc Nos. 6-20).

On July 31, 2024, Defendant filed a Cross Motion Sequence No. 002 by Notice of Motion as opposition to Plaintiff's Motion Sequence No. 001. (NY St Cts Filing [NYSCEF] Doc Nos. 23-31). Plaintiff filed a verified complaint on August 9, 2024, (NY St Cts Filing [NYSCEF] Doc Nos. 35) and reply to Motion Sequence No. 001 and opposition to Motion Sequence No. 002 on August 12, 2024. (NY St Cts Filing [NYSCEF] Doc Nos. 36-44). Oral argument on Motion Sequence No. 001 and Motion Sequence No. 002 was completed on August 21, 2024.

By Order dated August 21, 2024, the Family Offense petition was consolidated into this divorce action, (NY St Cts Filing [NYSCEF] Doc No. 51) and a temporary Order of Protection was issued. (NY St Cts Filing [NYSCEF] Doc No. 45). All issues of Motion Sequence No. 001 and Motion Sequence No. 002 were resolved, except for the issue of the Order of Protection originating from the consolidated Family Offense matter. (NY St Cts Filing [NYSCEF] Doc Nos. 49-50).

On September 17, 2024, a hearing was held regarding the Order of Protection issued in relation to the Family Offense matter. Plaintiff appeared in person, with her attorney, Francine Pickett Cohen, Esq. of The Law Offices of Francine Pickett Cohen, LLC. The Defendant appeared in person, with his attorney, Joseph Cammarata, Esq., of Cammarata & DeMeyer, P.C. The children were represented by Harry Chiu, Esq.

The Court heard testimony from two witnesses the Plaintiff and the Defendant. Plaintiff submitted written summation via NYSCEF document number 57 on October 9, 2024, and Defendant submitted written summation via NYSCEF document number 58 on October 9, 2024.

This is a Decision and Order after trial.

On May 9, 2024, Plaintiff filed a petition in the Family Court of New York, Richmond County, (Docket #O-02592/2024) alleging that the Defendant had committed a Family Offense against her. (NY St Cts Filing [NYSCEF] Doc No. 9). Plaintiff alleged in the Family Offense Petition that

The Respondent [Defendant LK] committed the following family offenses against me and/or my children which may constitute: Assault, Attempted Assault, Disorderly Conduct, Harassment, Menacing, Other, Reckless Endangerment, Aggravated Harassment, Criminal Mischief, Sexual Abuse, Sexual Misconduct, Forcible Touching, and/or Coercion.

Most recent incident: On May 7, 2024, at 05:00 PM, at Petitioner's [Plaintiff's] home, LK [Defendant] grabbed my left arm, pushed me against the railing and threatened me that if I don't give him sex, I will pay the price. This was around 5 pm. On April 21st at around 1 am LK [Defendant] threatened me in my home where my kids could hear, forcing me to have sex with him. I ran out of the house trying to leave in my car when LK [Defendant] cut me off with his vehicle, opened my door screaming and pulling my arm trying to get me out of the car. He threatened to kill me screaming repeatedly that I'm dead. I was able to drive away and called 911. (NY St Cts Filing [NYSCEF] Doc No. 9).

An ex parte temporary stay away Order of Protection was issued on Plaintiff's behalf on May 9, 2024. (see id). Plaintiff commenced this action for divorce by filing a summons with notice on May 14, 2024. (NY St Cts Filing [NYSCEF] Doc No. 1).

Plaintiff testified that she and the Defendant have been married for 18 years and have two children together. (tr at page 8, lines 10-21 [September 17, 2024]). Plaintiff is unemployed. (see id at lines 24-25). Plaintiff testified that she receives food stamps, and the Defendant provides her with $200.00 per week. (see is at page 9, lines 1-10).

Plaintiff testified that on or about May 7, 2024, Defendant "was demanding sex and I didn't want to give him and he grabbed me and choked me and demanded sex. And I broke free and ran out of the house." (see id at page 10, lines 7-9). Plaintiff testified that Defendant told her. "You better give me some [sex] or else." (see id at line 21). Plaintiff testified further regarding this conversation between the parties, which took place on a staircase landing between the first and second levels of the parties' home.

Q. And how close was LK to you on that landing?

A. Very close, it's not that big.

Q. Was he talking to you?

A. Aggressively, yes.

Q. Were you talking to him?

A. No.

Q. Okay. What was he saying to you that you described as being said aggressively?

A. You better give me some [sex] or else.

Q. Okay. And did you answer him or respond?

A. I said, no. I said, no, I don't want to.

Q. Then what happened next?

A. He grabbed me by my throat and he said, you better or else.

Q. Did he grab you anywhere else?

A. He grabbed me by my arm also.

Q. Did he grab you anywhere else?

A. No.

Q. Okay. And after he grabbed you by your throat and by your arm, what did you do next?

A. I broke free and I ran. (see id at pages 11-12).

Q. You left the house?

A. Yes.

Q. What time of day did this happen, do you recall?

A. It was during the day. I don't remember, I don't remember if it was the morning or the afternoon. It was during the day.

THE COURT: Did he typically ask for sex in the morning?

THE WITNESS: Throughout the day. It could have been any time; morning, night, whenever he felt like it. It was whenever he wanted it. (see id at pages 12-13).

Plaintiff's Exhibit 1, a photograph taken of the Plaintiff on May 8 or May 9 showing what appears to be a bruise on Plaintiff's upper arm between the elbow and the shoulder, was received into evidence. Plaintiff was questioned regarding Plaintiff's Exhibit 1.

Q. Referring to Plaintiff's 1, how did you get that mark on your arm?

A. LK grabbed my arm.

Q. Now, when did that happen that he grabbed your arm?

A. It was May 7th, May 7th.

Q. Was it the incident we are talking about?

A. Yes, yes.

Q. Now, did you get any medical attention after that incident?

A. No.

Q. Okay. Did you file a police report after this particular incident?

A. No. (see id at page 21, lines 4-16).

Plaintiff testified regarding a second incident on or about April 21, 2024.

A. We were preparing to go on a cruise.

Q. And who was preparing to go on a cruise?

A. Me, LK, and the children.

Q. Okay. And were there any discussions going on during that week about what was going to happen on the cruise between you and Mr. LK?

A. Yes.

Q. Okay. And can you describe those conversations?

A. Again, he wanted sex. And he was demanding sex.

Q. Demanding sex for when?

A. Before we go on the cruise.

Q. Did he explain why?

A. Well, because we wouldn't be able to have sex on the cruise because the children will be in the room with us.

Q. Okay. And were you on board? Not literally but figuratively, were you on board with his request?

A. No.

Plaintiff's Exhibit 2, a printout of text message communication between the Plaintiff and the Defendant dated from April 19 at 7:51 AM through April 21 at 3:07 PM, was received into evidence. The transcript of the communication reads as follows:

Defendant: Me first then seconds now on

Plaintiff: I'm not having sex with you ever get that through your head

Stop threatening me

Defendant: Ok, your choice your bed you lie in it!!!

Don't even pack don't even go. I'm telling you worst trip ever. I'm doing what I Gotta do. (plaintiff's exhibit 2 at pages 4-5).

Defendant: OK, you're fucking so done!!!! (see id at page 5).

Plaintiff was questioned regarding Plaintiff's Exhibit 2.

Q. You can summarize it.

A. I am not having sex with you. He said okay, your choice, your bed, you lie in it. Don't even pack, don't even go. I am telling you the worst trip ever. I am going to do what I got to do.

Q. What did you understand he would mean by that?

A. I don't know, I don't know what he was going to do, to hit me, to keep me from doing things.

Q. Why did you think he would hit you?

A. Because he has hit me before. (tr at page 27, lines 12-21 [September 17, 2024]).

Q. How did you feel after reading these texts?

A. Scared.

Q. Why were you scared?

A. Because I knew he would follow through on his threats.

Q. Why did you know? What made you know he would follow through on his threats?

A. Because he has done it before, because I didn't want to give him sex and I would have to because otherwise I would pay the price. And it was always like that. It was always like that with him. Always. (tr at page 28, lines 2-12 [September 17, 2024]).

Plaintiff testified regarding an incident that occurred with the Defendant on April 21, 2024:

Q. Okay. What, if anything, happened between you and Mr. LK over the course of April 21, 2024?

A. So I didn't want to give him any, so I left the house. And I just stayed out because I didn't want to go home. I didn't want to give him sex. And he found me and blocked my car and came out like a madman. And he is like, I am going to — can I curse?

Q. Yes.

A. I am going to fucking kill you. You are fucking dead.

Q. Who said those words?

A. LK. He came to my car, opened my door, tried pulling me out. I literally had to escape him with my car. I escaped him, and he backed up. He, I don't know the moves he did to block me again.

So I literally had to backup. I had to backup with my car and just drive. And I drove to a parking lot where it was lit, and I called the police. I was scared for my life. He looked like a maniac. (see id at page 29, lines 7-25).

Q. Did he touch you during this incident?

A. Yes, he grabbed me. (see id at page 30, lines 1-2).

Q. You said that you called the police. Did you file a police report that day?

A. Yes.

Q. Did you get a copy of the police report that you filed that day?

A. Yes, yes. (see id at page 30, lines 10-15).

Plaintiff's Exhibit 3, a copy of a New York State Domestic Incident report made to the New York City Police Department by the Plaintiff against the Defendant on April 21, 2024, was received into evidence. Plaintiff was questioned regarding the events of April 21, 2021.

Q. Do you remember what time of day the incident started?

A. During the day.

Q. And do you remember what time of day it ended?

THE COURT: Was it in the morning, was it in the afternoon, was it in the evening, was it in the night?

THE WITNESS: It was during the day. It was sunlight, I don't remember the time. I don't remember the time.

THE COURT: Would you say between 8 a.m. and noon?

THE WITNESS: Possibly around noon, possibly around noon. I don't remember, I am so sorry. I don't remember.

THE COURT: She doesn't remember. Go ahead, Ms. Cohen.

THE WITNESS: It was daylight. All I know is it was daylight.

Q. When you called the police, what time of day was it?

A. It was nighttime.

Q. Did you call them from home or from somewhere else? (tr at page 38, lines 4-25 [September 17, 2024]).

A. I don't remember exactly where. I was in my car trying to escape. (see id at page 39 lines, 9-10)

Q. Did you fear for your life?

A. Yes, I did. (see id at page 40, lines 5-6).

Plaintiff further testified under cross-examination.

Q. Mrs. CK, isn't it true that at 2 a.m. in the morning it's dark outside?

A. Yes.

Q. Isn't it true that you testified the incident took place during the daylight?

A. Which incident?

Q. April 21st.

A. Right. It was an all-day thing. He threatened me in the morning or afternoon, it was daylight. And it continued throughout the day until the night when he chased me, blocked me, and tried to kill me. Yes. (see id at page 42, lines 10-20).

Plaintiff testified that she was in fear of the Defendant but went with him and the children on a cruise on April 21. 2024. (see id at page 43, lines 1-9). Plaintiff further testified that on April 21, even though she made the domestic incident report earlier that day, she left on the cruise with the Defendant and her children because it was for her children's birthdays. (see id at page 48, lines 12-25). Plaintiff contends that she did not want to go on the cruise, she only went for her children. (see id at page 49, line 1).

Plaintiff maintains that she had fled in her vehicle away from the Defendant on the morning of April 21, 2024 (see id at page 50, lines 10-15) and wound up in a parking lot. (see id at lines 19-21). In this unidentified parking lot, plaintiff contends that she was met by police and [*2]reported the incident with the Defendant to them. (see id at page 51, lines 14-21). Plaintiff notified the police that there were no weapons involved (see id at lines 24-25) and there were no injuries. (see id at page 52, lines 1-4). Plaintiff further testified the there is no indication in the report that Plaintiff was forced to have sex with the Defendant. (see id at lines 17-20).

Plaintiff testified that she was interviewed by a police officer at the time the Domestic Incident Report was made and reported to the police officer that she was not injured (see id at page 53, lines 8-25), she was not in pain, and she did not have any visible marks. (see id at page 54, lines 1-19). Plaintiff further testified that at some point after her interaction with the police, she returned home, where the Defendant and her mother were present and finished packing for the cruise. (see id at page 55, lines 2-14).

Plaintiff was questioned further regarding the April 21, 2024, and May 7, 2024 incidents.

Q. This domestic incident report, you checked off that Mr. LK is capable of killing you and your children; is that correct?

A. Yeah.

Q. And —

A. My children —

Q. I have no question pending. But you still went on the cruise; is that correct?

A. Yes. (see id at page 56, lines 17-25).

Q. You still went on the cruise with your children, knowing Mr. LK or believing Mr. LK was a threat to kill you and your children?

A. Yes.

Q. On this May 7th incident that you have in the petition, did you call the police?

A. No, I did not. (see id at page 57, lines 1-7).

Q. No domestic incident report was taken on May 7th; is that correct?

A. That is correct.

Q. Why wasn't a report taken on May 7th?

A. I don't know. Because — I don't know.

THE COURT: She testified she didn't go to the police, that's why. (see id at page 62, lines 19-25).

Q. You were inside the police station; isn't that correct?

A. I went to the police and the police officer would not take my report because he said it was retaliatory. And I remember leaving angry. I said, are you serious, are you serious right now? He said, yes. (see id at page 63, lines 1-6).

Plaintiff testified that on May 7, 2024, Defendant "demanded sex, choked me, and grabbed me by my arm." (see id at page 65, lines 14-16). "I tried to escape and his grip was just stronger and stronger, and I ran out." (see id at 18-19).

Q. You didn't indicate in any report, including the Family Offense Petition, that you were choked; is that correct?

A. I don't know. I don't remember. That's what happened to me. I don't remember this period of time. I was literally getting abused almost every day.

Q. All right.

A. So I apologize if things are confused. It's a blending of constant abuse. They blend together. After a while, it just blends together. (see id at page 66, lines 3-11).

Plaintiff testified that she filed for a temporary Order of Protection within a day or two of the May 7, 2024 incident. (see id at pages 66-67). Plaintiff further testified that the Plaintiff's Exhibit 1, a photograph of Plaintiff's bruised upper arm, where the result of the incident that occurred in May and that there were no bruises from the April 21, 2024 incident. (see id at pages 68-69).

Plaintiff testified she is friends with Mr. BC, who she knows through the children's school and he is also part of an organization that helps domestic violence victims. (see id at page 69, lines 11-22). Parties' children and Mr. BC's children attend the same school. (see id at page 70, lines 1-8). Mr. BC's domestic violence group, CAPO, Child Abuse Prevention Organization, has a hotline, but no brick-and-mortar facility, and despite the name, Plaintiff contends they also help domestic violence victims. (see id at pages 70-72). Plaintiff further provided that CAPO is a motorcycle group which ride their motorcycles to cheer up children that have been abused and they go with them to court to help them out and give them strength. (see id at Page 80, lines 1-6).

Plaintiff was questioned regarding her relationship with Mr. BC.

THE COURT: Mrs. CK, is your relationship with Mr. BC anything other than professional?

THE WITNESS: No.

THE COURT: Are you romantically involved with him in any way?

THE WITNESS: No, no. (see id at page 76, lines 3-8).

Plaintiff testified about her concerns regarding the Defendant.

Q. Tell me your thoughts on, how would you feel if Mr. LK were back in your home withyou?

A. I would leave. I would not stay there.

Q. Why?

A. There is no way I could ever. First of all, I am afraid because he's threatened me many times that if I leave him he will kill me, I will be dead. He will murder me, literally murder me. (see id at page, 77, lines 4-11).

Q. Are you asking this Court for a full stay away order of protection?

A. Yes, please.

Q. Are you asking this Court to keep that order in place for a minimum of two years?

A. Yes. (see id at lines 18-23).

Defendant testified that on April 20, 2024, he and a friend, WR, were in Atlantic City gambling. (see id at page 83, lines 4-16). Defendant contends that he returned the afternoon of April 20, 2024. (see id at lines 20-21). Defendant testified that he fell asleep on the couch probably late afternoon, early evening and slept until approximately 10:00 PM to 11:00 PM, when he was awoken by a phone call from Mr. WR. (see id at page 85, lines 3-16). At this point Defendant testified he was unable to locate the Plaintiff in the family home. (see id at page 85-86).

Defendant testified that on April 21, 2024, at some point after midnight, Plaintiff was not in the family home and she did not return to the residence until morning, when the parties went on the cruise. (see page 91, lines 7-15). Plaintiff further testified:

THE COURT: Did you think it was unusual that your wife was not in the house that [*3]evening?

THE WITNESS: Yes, I did.

THE COURT: Had she ever not been in the house in the evening?

THE WITNESS: No. It was surprising to me. I was worried where she was.

THE COURT: What did you do when you discovered she wasn't there?

THE WITNESS: I asked the kids where she was, if they could find her and call her. (see id at page 92, lines 7-17).

THE COURT: What time was this?

THE WITNESS: 11:30, 12 o'clock. (see id at lines 20-21).

THE COURT: So what did you do?

THE WITNESS: I asked AK, do you know where your mother is. She said, she changed her underwear and her clothes and left the house. I said, could you try her phone. She said that she tried. She's not answering.

THE COURT: Don't you have her phone number?

THE WITNESS: Yes.

THE COURT: Why didn't you pick up the phone and call her? Did you try to call her?

THE WITNESS: Yes.

THE COURT: Do you have any evidence that you attempted to call her?

THE WITNESS: I am sure she does.

THE COURT: Do you have any evidence? That would be compelling to me, to know you were looking for her.

THE WITNESS: I don't have the cellphone records. It was under her name, the cellphone records.

THE COURT: How many times did you call her? I will issue a judicial subpoena and allow it to supplement the record. (see id at page 93, lines 1-21).

THE COURT: Why wouldn't you, if you discovered that your wife was missing from the house past 11:30 at night, and you don't know her whereabouts and she ordinarily wouldn't be out of the house, why wouldn't you call to see where your wife was?

THE WITNESS: Because I was sleeping. I woke up and asked my daughters first.

THE COURT: And after they said they didn't know —

THE WITNESS: No, one said they didn't know.

THE COURT: What did the other say?

THE WITNESS: Yes, let me Life 360 her. She said, oh, she's at this location.

THE COURT: Did you not say, I should call her, why is my wife at a parking lot?

THE WITNESS: It wasn't in a parking lot.

THE COURT: Where was it?

THE WITNESS: It was XX XXX Place, BC apartment house. (see id at page 94, lines 7-25).

THE COURT: And you know that to be his residence, how?

THE WITNESS: That's his address. I don't know.

THE COURT: When you found out that information, what did you do? Did you go there?

THE WITNESS: Yes, your Honor.

THE COURT: You went to the BC house at XX XXX Place?

THE WITNESS: I didn't know it was his house until I went there. I knew the car was parked there. I went to see if everything was all right with the car.

THE COURT: So you hopped in the car and her car was parked at BC's house?

THE WITNESS: Yes, our car was parked at Mr. BC's house.

THE COURT: What did you do, if anything? (see id at page 95 lines 9-25).

THE WITNESS: I stood there to wait to see what was going on.

THE COURT: Did you knock on the door?

THE WITNESS: Absolutely not.

THE COURT: Did you call the cops and say, my wife is missing and her car is in front of this strange house? I don't know.

THE WITNESS: Absolutely not.

THE COURT: What happened next?

THE WITNESS: I didn't want to assume anything, I waited. When I waited I was on the phone with WR on FaceTime, and she came out of the house with him, with no shirt on, proceeded to the car, kissed him, got in the car, while I am FaceTiming my friend, saw this, and she took off with the car.

THE COURT: Is your friend here to testify in this case?

MR. CAMMARATA: Couldn't come. (see id at page 96, lines 1-18).

Defendant testified that he was approximately 30-40 feet away while observing the Plaintiff, but did not say or do anything, nor did Defendant take any pictures. (see id at 96-97). Defendant maintains that he did not threaten to kill Plaintiff on April 21, 2024. (see id at page 97, lines 13-15). In regard to April 21, 2024, Defendant denied he demanded sex from Plaintiff, Defendant denied forcing Plaintiff to have sex, Defendant denied threatening Plaintiff in any way, and Defendant denied physically striking the Plaintiff. (see id at page 90, lines 9-17).

Defendant testified that Plaintiff did not return to the residence that night and he did not see her again until they left for the cruise. (see id at pages 102-103). Defendant testified as follows:

THE COURT: You decided that even though you saw your wife with a shirtless man at 11:30 at night, kissing on a public street, and you said nothing to her, that you would still go on a cruise with your wife?

THE WITNESS: I was going anyway. We were packed, ready to go. She called and asked if she could come. I was going no matter what.

THE COURT: Did you confront your wife about observing her at the location of another man's house, the man being shirtless, kissing her? Did you ever confront her about that?

THE WITNESS: Yes.

THE COURT: When did you do that? On the cruise, before the cruise?

THE WITNESS: Before the cruise. (see id at page 103, lines 11-25).

THE COURT: What did you say?

THE WITNESS: I said, you hurt me. I can't believe you cheated on me. This is not right. You are killing this family. I can't believe you do this to me. I am so hurt.

THE COURT: Yet, you still went on the cruise with her, slept in the same bed with her, went to dinner with her, as you testified, for many nights. You did all those things with her, acknowledging that you just seen her the day before kissing another man in public at 11:30 at night, having left your house while you were sleeping on the couch. That's your testimony?

THE WITNESS: Yes, your Honor.

Q. Why, why?

A. Because I love my wife. (see id at page 104, lines 1-15).

Defendant maintains that he did not ask Plaintiff to have sex prior to the cruise. (see id at 98, lines 15-20). Defendant testified regarding the intimacy between him and the Plaintiff.

THE COURT: How often did you have sex with your wife in or about April 2024?

THE WITNESS: In April, I don't know, two, three times a week.

THE COURT: Okay. And did you say to your wife that you wanted to have sex ahead of the cruise because you knew that you would be in a room with your daughters and that that would not be possible over the trip?

THE WITNESS: We did have sex on the cruise. Not on that particular cruise but on other cruises. We used to go like to clubs and entourages and dinners and we would go back after and have sex on the balcony, on the bed. We did have sex on the cruise.

THE COURT: You didn't think you would not be having sex on this particular cruise?

THE WITNESS: No.

THE COURT: You didn't ask her to have sex prior to the cruise?

THE WITNESS: We had sex prior to the cruise in the house.

THE COURT: I am talking about this cruise. When was the last time you had sex before you went on the cruise?

THE WITNESS: That week, probably two, three days before we went away. (see id at pages 98-99).

Defendant testified regarding the events of May 7, 2024. Defendant denied threatening the Plaintiff that if she didn't have sex with him, she would pay the price. (see id at Page 100, lines 15-17). Defendant denied ever threatening Plaintiff to get her to perform sexual acts with him. (see id lines 19-20). Defendant was questioned further.

Q. How would you physically request sex from your wife?

A. Sometimes I would ask her. Sometimes she would say, get me my vape and I will have sex with you. If you don't get it, I'm not having sex with you. Buy me a pocketbook or I am not doing this for you. It was a barter thing. (see id lines 21-25).

Q. And when you were, I guess, asked to barter for sex, what did you do?

A. I went out and got her the vape, of course.

Q. What about when she asked you, if you want to have sex you got to get the bag, what did you do?

A. Nothing. I went to get the bag.

THE COURT: You said you had sex twice a week. How many bags does she have?

THE WITNESS: She has about 30. (see id at page 101, lies 1-9).

Defendant maintains that on May 7, 2024, there was no physical or verbal altercation on the staircase in the marital residence between him and the Plaintiff. (see id at page 101-102). Defendant was questioned on cross-examination about an alleged domestic violence incident between him and the Plaintiff at Bally's Atlantic City on May 18, 2011, which did not remember but denied hitting Plaintiff in the stomach and doubling her over. (see id at page 118, lines 8-19). Defendant admitted that he had been arrested once based on a complaint by the Plaintiff, but he has never been convicted of a crime. (see id at pages 120-121).

On May 9, 2024, Plaintiff alleged in Family Offenses Petition, File #XXXXX, Docket #O-XXXXX-24, that Defendant committed Family Offenses against her which may constitute: Assault, Attempted Assault, Disorderly Conduct, Harassment, Menacing, Other, Reckless Endangerment, Aggravated Harassment, Criminal Mischief, Sexual Abuse, Sexual Misconduct, Forcible Touching, and/or Coercion. (NY St Cts Filing [NYSCEF] Doc No. 9).

Plaintiff further alleges that on May 7, 2024, at 05:00 PM, at her home, the Defendant grabbed her left arm, pushed her against the railing and threatened her that if she did not give him sex, Plaintiff will pay the price. Plaintiff further alleges that on April 21, 2024 at around 01:00 AM Defendant threatened her in her home within audio range of the children, forcing Plaintiff to have sex with Defendant. Plaintiff maintains that she ran out of her home, attempting to leave in her car when Defendant cut her off with his vehicle, opened her door screaming and pulling her arm trying to get her out of the car. Plaintiff contends that Defendant threatened to kill her screaming repeatedly that she was dead. Plaintiff further contends that she was able to drive away and call 911. (see id).

Plaintiff testified regarding the events of May 7, 2024, that resulted in her filing the Family Offense Petition.

Q. Okay. And what, if anything, happened between you and Mr. LK that day?

A. He was demanding sex and I didn't want to give him and he grabbed me and choked me and demanded sex. And I broke free and ran out of the house. (tr at page 10, lines 5-9 [September 17, 2024]).

Q. What did he say to you during this conversation, what did you say to him?

A. You better give me some or else.

Q. Where were you during this conversation?

A. I was by the stairs.

Q. Okay. When you say "by the stairs," explain what you mean; by the stairs, near the stairs, what do you mean? (see id at lines 19-25)

A. There are two levels. It was the stairs and then there's, like, I don't know what is called.

Q. A landing?

A. Yeah, and then the stairs going up again.

Q. These stairs are between what levels of your home?

A. The first and second. (see id at page 11, lines 1-6).

Q. Okay. And were you alone on the staircase or on the landing?

A. No.

Q. Who else was there with you?

A. LK.

Q. And how close was LK to you on that landing?

A. Very close, it's not that big.

Q. Was he talking to you?

A. Aggressively, yes.

Q. Were you talking to him?

A. No.

Q. Okay. What was he saying to you that you described (see id at 14-25) as being said [*4]aggressively?

A. You better give me some or else.

Q. Okay. And did you answer him or respond?

A. I said, no. I said, no, I don't want to.

Q. Then what happened next?

A. He grabbed me by my throat and he said, you better or else.

Q. Did he grab you anywhere else?

A. He grabbed me by my arm also.

Q. Did he grab you anywhere else?

A. No.

Q. Okay. And after he grabbed you by your throat and by your arm, what did you do next?

A. I broke free and I ran.

Q. Okay. And where did you go?

A. Outside. I left. (see id at page 12, lines 1-16).

Q. Well, you testified that Mr. LK grabbed you by the throat and he grabbed you by the arm?

A. Right. (see id at page 14, lines 4-6).

Plaintiff testified that she was injured because Defendant grabbed her by the arm during the incident on May 7, 2024, and a photograph of her arm was admitted into evidence as Plaintiff's Exhibit 1. Plaintiff's Exhibit 1, a photograph taken of the Plaintiff on May 8 or May 9 shows what appears to be a bruise on Plaintiff's upper arm between the elbow and the shoulder.

Plaintiff testified that in the days leading up to the second incident alleged in her Family Offense Petition, the parties were preparing to go on a cruise. Plaintiff testified as follows:

Q. Okay. And were there any discussions going on during that week about what was going to happen on the cruise between you and Mr. LK?

A. Yes.

Q. Okay. And can you describe those conversations?

A. Again, he wanted sex. And he was demanding sex.

Q. Demanding sex for when?

A. Before we go on the cruise.

Q. Did he explain why?

A. Well, because we wouldn't be able to have sex on the cruise because the children will be in the room with us.

Q. Okay. And were you on board? Not literally but figuratively, were you on board with his request?

A. No. (tr at page 22, lines 9-22 [September 17, 2024]).

Plaintiff's Exhibit 2, a printout of text message communication between the Plaintiff and the Defendant dated from April 19 at 7:51 AM through April 21 at 3:07 PM, was received into evidence. The transcript of the communication reads as follows:

Defendant: Me first then seconds now on

Plaintiff: I'm not having sex with you ever get that through your head

Stop threatening me

Defendant: Ok, your choice your bed you lie in it!!!

Don't even pack don't even go. I'm telling you worst trip ever. I'm doing what I Gotta do. (plaintiff's exhibit 2 at pages 4-5).

Defendant: OK, you're fucking so done!!!! (see id at page 5).

Plaintiff was questioned regarding Plaintiff's Exhibit 2.

Q. You can summarize it.

A. I am not having sex with you. He said okay, your choice, your bed, you lie in it. Don't even pack, don't even go. I am telling you the worst trip ever. I am going to do what I got to do.

Q. What did you understand he would mean by that?

A. I don't know, I don't know what he was going to do, to hit me, to keep me from doing things.

Q. Why did you think he would hit you?

A. Because he has hit me before. (tr at page 27, lines 12-21 [September 17, 2024]).

Q. How did you feel after reading these texts?

A. Scared.

Q. Why were you scared?

A. Because I knew he would follow through on his threats.

Q. Why did you know? What made you know he would follow through on his threats?

A. Because he has done it before, because I didn't want to give him sex and I would have to because otherwise I would pay the price. And it was always like that. It was always like that with him. Always. (tr at page 28, lines 2-12 [September 17, 2024]).

Plaintiff testified that on April 21, 2024, she declined to have sex with the Defendant, and left the home. Plaintiff testified:

A. So I didn't want to give him any, so I left the house. And I just stayed out because I didn't want to go home. I didn't want to give him sex. And he found me and blocked my car and came out like a madman. And he is like, I am going to — can I curse?

Q. Yes.

A. I am going to fucking kill you. You are fucking dead.

Q. Who said those words?

A. LK. He came to my car, opened my door, tried pulling me out. I literally had to escape him with my car. I escaped him, and he backed up. He, I don't know the moves he did to block me again.

So I literally had to backup. I had to backup with my car and just drive. And I drove to a parking lot where it was lit, and I called the police. I was scared for my life. He looked like a maniac. (see id at page 29, lines 7-25).

A. It was an all-day thing. He threatened me in the morning or afternoon, it was daylight. And it continued throughout the day until the night when he chased me, blocked me, and tried to kill me. Yes. (see id at page 42, lines 10-20).

A copy of the police report filed by the Plaintiff was admitted into evidence as Plaintiff's Exhibit 3.

When asked what she would do if Defendant were returned to the home,

A. I would leave. I would not stay there.

Q. Why?

A. There is no way I could ever. First of all, I am afraid because he's threatened me many times that if I leave him he will kill me, I will be dead. He will murder me, literally murder me. (see id at Page 77, lines 6-11).

"The allegations in a family offense proceeding must be 'supported by a fair preponderance of the evidence'" (see Matter of Vien v Bala-Gbogbo, 193 AD3d 748 [2d Dept 2021] quoting Matter of Diaz v Rodriguez, 164 AD3d 1340 [2d Dept 2018] quoting Family Ct Act § 832).

"The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and its determinations regarding the credibility of witnesses are entitled to great weight on appeal, such that they will not be disturbed unless clearly unsupported by the record" (see id quoting Matter of Howard v Howard, 181 AD3d 894 [2d Dept 2020] quoting Matter of Porter v Moore, 149 AD3d 1082 [2d Dept 2017]; citing Matter of Stringer v Grant, 187 AD3d 1198 [2d Dept 2020]; Matter of Qin Fen Wang v Chee Kiang Foo, 171 AD3d 1187 [2d Dept 2019]).

Harassment in the first degree provides "[a] person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury." (see NY CLS Penal § 240.25).

Harassment in the second degree provides:

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; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose. (see NY CLS Penal § 240.26).

The elements of Assault in the third degree are

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; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. (see NY CLS Penal § 120.00),

Menacing in the third degree provides that "[a] person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury." (see NY CLS Penal § 120.15).

Plaintiff's Family Offense Petition provided that the parties' children, BK, born on XXX XX, 2007, and AK, born on XXX XX, 2009, live with the Plaintiff. Parties have represented to the Court that the child, BK, is residing with the Defendant and the child, AK, is residing with the Plaintiff. No testimony was offered, and insufficient evidence was submitted, that would support a finding of circumstances such that a two-year Order of Protection should be issued on behalf of the children and against the Defendant.

Plaintiff has offered credible testimony that the Defendant intentionally and repeatedly harassed her and threatened in such a matter to put her in reasonable fear of physical injury. Plaintiff's testimony is supported by Plaintiff's Exhibit 1, the photo of the Plaintiff's bruised arm, and Plaintiff's Exhibit 2, the transcript of the text conversation in which the Defendant texted Plaintiff, "Don't even pack don't even go. I'm telling you worst trip ever. I'm doing what I Gotta do" (Plaintiff's Exhibit 2 at pages 4-5) and "OK, you're fucking so done!!!!" (see id at page 5).

Plaintiff's testimony is further supported by Plaintiff's Exhibit 3, a copy of a New York State Domestic Incident report made to the New York City Police Department by the Plaintiff against the Defendant on April 21, 2024, after Plaintiff refused to have sex with the Defendant and Defendant caused Plaintiff to flee from the home to a public area.

This credible testimony of the Plaintiff is further supported by the testimony of the Defendant in which he testified that used the Life 360 app to track the Plaintiff to the location of XX XXX Place and observed her activities from 30-40 feet away at 11:30 PM.

After all counsel presented evidence relevant to these events, and summations and argument was considered, this Court finds that Plaintiff established by a fair preponderance of the evidence that Defendant had committed the Family Offense of Harassment in the First Degree as set forth in Penal Law § 240.25 in that the Defendant followed the Plaintiff in his vehicle, on a public street, and he engaged in a course of conduct which placed the Plaintiff in reasonable fear of physical injury.

After all counsel presented evidence relevant to these events, and summations and argument was considered, this Court finds that Plaintiff established by a fair preponderance of the evidence that Defendant had committed the Family Offense of Harassment in the Second Degree as set forth in Penal Law § 240.26 in that the Defendant did subject the Plaintiff to physical contact and threats of physical contact with the intent to harass, annoy, or alarm the Plaintiff, and he engaged in a course of conduct which caused the Plaintiff significant alarm and served no legitimate purpose.

After all counsel presented evidence relevant to these events, and summations and argument was considered, this Court finds that Plaintiff established by a fair preponderance of the evidence that Defendant had committed the Family Offense of Assault in the Third Degree as set forth in Penal Law § 120.00 in that, with intent, the Defendant caused physical injury to the Plaintiff, specifically a large bruise on her arm as depicted in Plaintiff's Exhibit 1.

After all counsel presented evidence relevant to these events, and summations and argument was considered, this Court finds that Plaintiff established by a fair preponderance of the evidence that Defendant had committed the Family Offense of Menacing in the Third Degree as set forth in Penal Law § 120.15 in that the Defendant did intentionally place or attempt to place the Plaintiff in fear of death or imminent physical injury, by blocking her vehicle with his own, opening Plaintiff's car door, and attempting to pull her out of the vehicle while uttering [*5]threatening words or phrases.

Accordingly, after considering all of the relevant factors, this Court finds that Plaintiff's credible testimony evidencing a pattern of threats and violence, supports a finding of circumstances such that a two-year Order of Protection is GRANTED in favor of the Plaintiff and against the Defendant.

Therefore, it is hereby Ordered that an immediate Order of Protection shall issue, which shall extend for a period of two years from the date of this Decision. This Order, which shall issue contemporaneously with this Decision, will provide that Defendant not commit an unlawful act against Plaintiff, together with a provision that Defendant, LK, stay away from Plaintiff, CK, her home, her school or place of employment at all times, and refrain from communication from Plaintiff unless that communication is made in writing, by email or text message, for the purpose of facilitating visitation between Defendant and the subject children, effectuating the disposition of assets herein, or any other subject that the parties may agree to in writing. This Order shall also enjoin Defendant from possessing any firearms or obtaining a license to possess such firearms as set forth more fully therein.

IN SUMMARY, IT IS HEREBY ORDERED AS FOLLOWS:

ORDERED that Plaintiff's application for a full stay away Final Order of Protection on behalf of the parties' children, BK, born on XXX XX, 2007, and AK, born on XXX XX, 2009, against the Defendant, LK, is hereby DENIED; and it is further,

ORDERED that Plaintiff's application for a full stay away Final Order of Protection against the Defendant, LK, is hereby GRANTED for a period of two years from the date of this Decision; and it is further,

ORDERED that this Final Order of Protection, which shall issue contemporaneously with this Decision, will provide that Defendant not commit an unlawful act against Plaintiff, together with a provision that Defendant, LK, stay away from Plaintiff, CK, her home, her school or place of employment at all times, and refrain from communication from Plaintiff unless that communication is made in writing, by email or text message, for the purpose of facilitating visitation between Defendant and the subject children, effectuating the disposition of assets herein, or any other subject that the parties may agree to in writing; and it is further,

ORDERED that this Final Order of Protection shall also enjoin Defendant from possessing any firearms or obtaining a license to possess such firearms as set forth more fully therein; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court after trial.