Matter of Rosales

[*1] Matter of Rosales 2013 NY Slip Op 51211(U) Decided on July 22, 2013 Family Court, Queens County Lebwohl, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 25, 2013; it will not be published in the printed Official Reports.

Decided on July 22, 2013
Family Court, Queens County

In the Matter of a Miscellaneous Application under the Family Court Act Maria Rosales, Petitioner.



Z-20805-12

Dennis Lebwohl, J.

This is an ex parte application filed by counsel for Petitioner on May 29, 2013.

"The Violence Against Women Act of 2000 (VAWA 2000) created the "U-Visa" to protect women, children and men who are the victims of domestic violence, sexual assault, and enslavement prostitution and who are likely to be helpful to law enforcement in prosecuting such criminal activity" (Immigration Law and the Family § 14:124, pages 779-780). VAWA 2000 promulgated a nonimmigrant category under 8 USCS § 1101(a)(15)(U) for these victims to obtain temporary nonimmigrant legal status provided that law enforcement authorities certify that without the victims assistance an investigation or prosecution would be harmed (id).

In 2007 regulations were created providing for a means for these victims to apply for a U-visa under 8 CFR § 214.14. This regulation specifies the procedures for a victim to obtain "U" status. A victim must submit Form I-918 entitled "Petition for U Nonimmigrant Status" pursuant to 8 CFR § 214.14(c)(1). 8 CFR § 214.14(c)(2) provides that Form I-918 must contain "initial evidence" comprised of Form I-918, Supplement B, executed by a certifying official (8 CFR § 214.14[c][2][i]). A State or local Judge qualifies as a certifying official under 8 CFR § 214.14(a)(3)(ii).

On November 14, 2012 this Court denied with leave to renew Petitioner's counsel's request for this Court to execute the Form I-918 Supplement B, U Immigrant Status Certification because it did not contain a transcript for the proceeding conducted on October 5, 2010 in the [*2]matter entitled Maria Rosales v Pedro Felix Gonzalez, docket number O-26518-09. This transcript is necessary because the proceedings held on October 5, 2010 was conducted before Hon. Maryellen Fitzmaurice, whom has since retired from the bench.

On May 29, 2013 counsel for Petitioner re-filed a request for this Court to complete Form I-918 Supplement B, U Immigrant Status Certification. Counsel annexed a copy of a transcript for the October 5, 2010 proceeding prepared by Toni Ann Dipalma of Precision Reporting , LLC located at PO Box 140434, Station B, Jamaica, New York 11414. The Court file contains a transcript for the proceedings conducted on October 5, 2002, prepared by Lisa Marie Colavito, also of Precision Reporting, LLC. Both transcripts contain a certificate from the reporter certifying that the transcript was prepared ". . . using the required equipment and is a true and accurate record of the proceedings" pursuant to Judiciary Law § 300. Oddly enough, the certificates prepared by Ms. Dipalma and Ms. Colavito indicate that these transcripts were prepared on January 8, 2013, notwithstanding that both reporters are employed by Precision Reporting, LLC.

In 1995 the Legislature enacted section 290-a of the Judiciary Law which provided the following:

1. Notwithstanding any other provision of law, the chief administrator of the courts may authorize on a trial basis, the use of mechanical recording of testimony and of other proceedings in each cause, in lieu of the taking of stenographic minutes thereof: (i) in a surrogate's court in any county; (ii) in the court of claims; and (iii) in civil cases heard in city and district courts, in the New York city civil court and except with respect to proceedings under articles three, seven and eight of the family court act, in the family court. 2. In any court in which the chief administrator of the courts has authorized the use of mechanical recording, the following standards governing the use of such recording shall be applicable: (i) In any proceeding in which there are no more than two parties, mechanical recording of testimony and of other proceedings in lieu of the taking of stenographic minutes thereof shall be utilized unless the court finds, upon motion of either party or upon the court's own motion, that due to the nature of the proceedings, the testimony to be presented, the resources for the use of mechanical recording available to the court or other relevant considerations, special circumstances exist which require the taking of stenographic minutes. (ii) In any proceeding in which there are more than two parties, stenographic minutes of such proceedings shall be utilized in lieu of mechanical recording unless the court finds, upon motion of either party or upon the court's own motion, that due to the nature of the proceedings, the testimony to be presented or other relevant considerations, special circumstances exist which allow for the use of mechanical recording.

This statute provided the Office of Court Administration broad power to implement the [*3]use of the mechanical recording of testimony. Subsequently this statute was repealed on June 30, 1995 (see Laws 1995, ch 83 § 362[14]). Thereafter, it became the common practice of this Court to mechanically transcribe the minutes in Article 8 proceedings of the Family Court Act.

The New York State Unified Court System's website (NYCOURTS.GOV) contains a variety of links to assist the public in navigating the Court system. One of these links is entitled "NY City Family Court". This link includes a section named "Transcription Services" which provides a detailed procedure for how a litigant or an attorney of record may obtain minutes for a proceeding conducted before this Court. For those proceedings that are recorded mechanically, the Court's website provides a roster of transcription service providers whom have agreed to comply with the standard transcript specifications as outlined in 22 NYCRR § 108.3.

The standard transcript specifications as described in 22 NYCRR § 108.3(d) provides:

The first page of each transcript shall include a title setting forth only the following:

(1) the court, the county or city of venue, and the part in which the proceedings were held;

(2) the name of the case;

(3) the number of the accusatory instrument(s) or case number(s), the charge and the nature of the proceedings;

(4) the address of the courthouse;

(5) the date(s) of the proceedings;

(6) the presiding authority;

(7) whether the proceedings were before a jury;

(8) the appearances of counsel for the parties; and

(9) the name of each court reporter and each court interpreter, if any.

Upon a review of the transcripts prepared by Ms. Dipalma and Ms. Colavita, it appears that several differences exist. The transcript prepared by Ms. Dipalma does not state the name of the jurist whom presided over the proceedings conducted on October 5, 2010. The transcript prepared by Ms. Colavito states that Hon. Maryellen Fitzmaurice presided over the proceedings conducted on October 5, 2010. The remaining differences between the two transcripts include the following: (1) page 6 line 6 of Ms. Dipalma's transcript states "My oldest daughter", whereas page 5 line 24 of Ms. Colavito's transcript states "My eldest daughter"; (2) page 6 line 8 of Ms. Dipalma's transcript states "farther", however page 5 line 25 of Ms. Colavito's transcript states "father"; (3) page 6 line 6 of Ms. Colavito's transcript states "The twenty-two year old", whereas page 6 line 13 of Ms. Dipalma's transcript states "Twenty-two". These differences are ministerial and occur after Judge Fitzmaurice issued a finding. Since Ms. Colavito's transcript is in compliance with 22 NYCRR § 108.3(d), this Court will utilize said transcript in determining the merits of the instant application.

According to the transcript prepared by Ms. Colavito, Mr. Gonzalez failed to appear in [*4]Court on October 5, 2010. An inquest was held upon the allegations contained in the family offense petition filed by Ms. Rosales under docket number O-26518-09. The transcript includes the following testimony from Ms. Rosales:

Q:I'm going to direct your attention to October 24th, 2009, did anything occur between you and Mr. Gonzalez?

A:Yes.

Q:Can you tell me what happened?

A:He was stalking me, and he was telling me I had to go back with him, otherwise he was going to kill me.

Q:And, who is "he" that you're referring to?

A:My husband.

Q:And, what's his name?

A:Pedro Felix Gonzalez.

Q:Do you remember where you were when this incident took place?

A:Yes, (inaudible), Woodbine, Queens.

Q:On December 30, 2009, at your home, did anything unusual happen between you and Mr. Gonzalez?

A:Yes, I had an argument with him and he slapped me because I confronted him with (inaudible), with the money that I had and some jewelry.

Q:In what part of your body did he slap you?

A:On my face.

Q:(inaudible) that he slapped you?

A:My small children found out. He was yelling at me and calling me a prostitute, and he kept insulting me.

(Colavito Transcript page 4 line 10 to page 5 line 7).

At the conclusion of the inquest Judge Fitzmaurice stated the following:

(inaudible). Respondent is to remain away from Maria Rosales and her home and her place of business and is to refrain from communication with her by any means and is not to menace, harass, recklessly endanger or assault her. He is not to interfere with her care and custody of the children subject to any court ordered or agreed upon visitation. (see Colavito transcript page 5 lines 11-17).

Thereafter, Judge Fitzmaurice issued a final order of protection upon default in favor of [*5]Ms. Rosales against Mr. Gonzalez for a period of two years subject to any Court ordered or agreed upon visitation.

The family offense petition filed by Ms. Rosales on December 8, 2009 under docket number O-26518/09 alleges incidents occurring on December 1, 2009, and eight days after she and Mr. Gonzalez got married. In addition, the petition also alleged an incident occurred on October 24, 2009. During the inquest Ms. Rosales testified about two incidents occurring on October 24, 2009 and December 30, 2009. There was no testimony or evidence received during the inquest with respect to an incident occurring on December 8, 2009 or 8 days after Ms. Rosales and Mr. Gonzalez got married, nor does the petition allege an incident occurring on December 30, 2009. For that reason, this Court will only include the October 24, 2009 incident in Question "2" of Part "3" in Form I-918 Supplement B.

Question "3" in Part "3" of Form I-918 requests that the certifying agent "[list the statutory citation(s) for the criminal activity being investigated or prosecuted, or that was investigated or prosecuted". Neither the transcript for the inquest nor the Court file indicate which sections of the penal code Mr. Gonzalez violated resulting in the issuance of the final order of protection on October 5, 2010. Pursuant to FCA § 821(1)(a), a petition claiming that a family offense has occurred must at least allege that the respondent behaved in a way that would constitute one of the delineated acts in FCA § 812 (see M.T. v E.T., 18 Misc 3d 418 [Family Court, Nassau County 2007]). The family offense petition Ms. Rosales filed on December 8, 2009 alleged that Mr. Gonzalez committed specific acts " . . . which constitute attempted assault, assault in the second degree or third degree, aggravated harassment in the second degree, harassment in the first or second degree, disorderly conduct, menacing in the second or third degree, reckless endangerment, stalking, criminal mischief, sexual abuse in the second or third degree, sexual misconduct, and forcible touching". The elements of these specific acts enumerated in the family offense petition are found in the relevant sections of the Penal Law (Merrill Sobie, Practice Commentaries, McKinney's Consolidated Laws of New York Annotated, vol. 29AJudiciary Law § 812, page 225). For that reason, this Court will answer Question "3" in Part "3" of Form I-918 by referring to the family offense petition.

Under these circumstances, the Court finds that it possesses sufficient information to complete Form I-918 Supplement B as set forth herein.

Accordingly, the relief requested herein is granted.

SO ORDERED

E N T E R

[*6]

HON.DENNIS LEBWOHL

Dated:July 22, 2013

Jamaica, New York