Matter of Feng Xia Wang v Yong Zhao
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Attorneys and Parties
Brief Summary
Family law; whether the petitioner proved family offenses in a proceeding under Family Court Act article 8 [family offense proceedings], and whether the court could also find a lesser included attempt offense after finding the completed assault.
The Family Court found that Yong Zhao committed harassment in the second degree, menacing in the third degree, assault in the third degree, and attempted assault in the third degree, and directed him to comply with an order of protection.
The Appellate Division deleted only the finding that Zhao committed attempted assault in the third degree.
Because once the court found the completed family offense of assault in the third degree, it should not also have found the lesser included offense of attempted assault in the third degree based on the same circumstances.
Background
In December 2023, Feng Xia Wang commenced a family offense proceeding against her husband, Yong Zhao, under Family Court Act article 8 [family offense proceedings]. After a hearing featuring sharply conflicting testimony, the Family Court credited Wang's account and found that Zhao committed harassment in the second degree under Penal Law § 240.26 [harassment in the second degree], menacing in the third degree under Penal Law § 120.15 [menacing in the third degree], assault in the third degree under Penal Law § 120.00(1) [intentional third-degree assault], and attempted assault in the third degree under Penal Law §§ 110.00 and 120.00(1) [attempt to commit third-degree assault]. Zhao appealed from the fact-finding order and the later fact-finding and disposition order.
Lower Court Decision
The Family Court, Queens County, after a hearing, found that Zhao committed four family offenses and issued relief including an order of protection requiring him to comply with specified terms.
Appellate Division Reversal
The Appellate Division dismissed the appeal from the standalone fact-finding order because it was superseded by the order of fact-finding and disposition. It rejected the claim that the appeal was untimely because the record did not show service, in-court receipt, or mailing of the orders under Family Court Act § 1113 [time to appeal in Family Court depends on service by a party, receipt in court, or mailing by the court]. On the merits, it held that the record and the Family Court's credibility determinations supported the findings of harassment, menacing, and assault by a fair preponderance of the evidence. However, it modified the order by deleting the finding of attempted assault in the third degree because that was a lesser included offense of the completed assault finding. The order of protection remained in place because the remaining family offense findings independently justified it.
Legal Significance
The decision reinforces two points in New York family offense practice: appellate courts give substantial deference to Family Court credibility determinations when testimony conflicts, and a court should not sustain both a completed offense and its lesser included attempt offense on the same facts. It also highlights that timeliness of a Family Court appeal may be unresolved on the record absent proof of service, receipt in court, or mailing under Family Court Act § 1113.
A petitioner can sustain a family offense order of protection through credible proof by a fair preponderance of the evidence, but a finding for attempted assault cannot stand when the court has already found the completed assault based on the same conduct.