Neal D. Futerfas, White Plains, for appellant.
Law Offices of Olu Jaiyebo, New York (Olu Jaiyebo of counsel), for respondent.
Tom, J.P., Acosta, Andrias, Freedman, Feinman, JJ.
Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about August 14, 2012, which, after a hearing, found that respondent committed the family offense of harassment in the first or second degree, and granted an order of protection directing respondent to observe certain conditions of behavior for a period not in excess of two years, unanimously modified, on the law, to vacate the finding of harassment in the first degree, and otherwise affirmed, without costs.
Petitioner established by a fair preponderance of the evidence that respondent committed acts warranting an order of protection in her favor (see Family Court Act § 832). She established that respondent engaged in a course of conduct alleged in the petition, involving calling, texting and following petitioner over a period of time and appearing outside her house in the early morning hours, that constituted harassment in the second degree (Penal Law § 240.26). The sheer number of calls respondent made provides a reasonable basis on which to infer that he intended to annoy or alarm petitioner (see People v Tiffany, 186 Misc.2d 917, 919 [Crim Ct, NY County 2001]) and that the calls did not serve a legitimate purpose other than to hound her (see People v Stuart, 100 N.Y.2d 412, 428 ).
However, the record does not support the alternate finding of first-degree harassment, since there is no evidence that respondent engaged in a course of conduct or repeatedly committed acts that placed petitioner "in reasonable fear of physical injury" (Penal Law § 240.25; see People v Demisse, 24 A.D.3d 118 [1st Dept 2005], lv denied 6 N.Y.3d 833 ). Indeed, the court did not find that respondent's acts placed petitioner in fear of physical injury.
In the absence of a clear abuse of discretion, we defer to the trial court's determination of the permissible scope of cross examination of petitioner (s ...