Calendar Date: May 2, 2017
Patnode, Rural Law Center of New York, Castleton (Cynthia
Feathers of counsel), for appellant.
M. Babson, Saratoga Springs, for respondent.
Before: Peters, P.J., Garry, Lynch, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Warren County (Kershko,
J.), entered March 29, 2016, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act
article 8, for an order of protection.
(hereinafter the mother) and respondent (hereinafter the
father) are the parents of three daughters (born in 2006,
2009 and 2011). In March 2016, the mother filed a family
offense petition against the father, alleging that the father
had committed the family offenses of harassment in the first
or second degree and stalking. Following a hearing, Family
Court, among other things, found that the mother established,
by a preponderance of the evidence, that the father had
committed the family offense of harassment in the second
degree, and issued a two-year order of protection requiring
that the father refrain from committing any family offenses
against the mother. The father now appeals.
affirm. In a family offense proceeding, the petitioner bears
the burden of proving, by a preponderance of the evidence,
that the respondent committed a family offense (see
Family Ct Act §§ 821 [a]; 832; Matter of Dawn
DD. v James EE., 140 A.D.3d 1225, 1226 , lv
denied 28 N.Y.3d 903');">28 N.Y.3d 903 ; Matter of Sharyn PP. v
Richard QQ., 83 A.D.3d 1140, 1142 ). As relevant
here, harassment in the second degree requires proof that an
individual, "with intent to harass, annoy or alarm
another person[, ]... engages in a course of conduct or
repeatedly commits acts which alarm or seriously annoy such
other person and which serve no legitimate purpose"
(Penal Law § 240.26 ). "[W]hether a family
offense has been committed is a factual issue to be resolved
by Family Court, and its determinations regarding the
credibility of witnesses are entitled to great weight"
(Matter of Elizabeth X. v Irving Y., 132 A.D.3d
1100, 1101  [internal quotations marks and citation
omitted]; see Matter of Lynn TT. v Joseph O., 129
A.D.3d 1129, 1129 ).
mother testified that she and the father were involved in a
romantic relationship for roughly 10 years and that she was
fearful of the father because he had been physically abusive.
She stated that, on February 16, 2016, she moved into a
domestic violence shelter and that, after she told the father
that she was no longer residing with the children's
maternal grandmother, the father repeatedly contacted her, as
well as her friends, asking for her address. The mother
stated that the father's incessant phone calls and text
messages continued for "a little over a week" and
that she received 18 text messages on one day requesting her
address. According to the mother, she repeatedly told the
father that she would not disclose her location and asked him
to stop contacting her for this purpose. The mother further
testified that, although not overtly threatening, the
numerous text messages and phone calls were unsettling, given
the father's history of domestic violence, as well as
recent, unexplained damage to her vehicle. While the father
acknowledged that he asked the mother for her address each
day that week and also contacted one of the mother's
friends, he testified that each call and text message
pertained to the children. Deferring to Family Court's
credibility determinations in favor of the mother (see
Matter of Joan FF. v Ivon GG., 85 A.D.3d 1219, 1219
), and mindful that the requisite intent to harass,
annoy or alarm may be inferred from the surrounding
circumstances (see Matter of Vanita UU. v Mahender
VV., 130 A.D.3d 1161, 1166 , lv dismissed and
denied 26 N.Y.3d 998');">26 N.Y.3d 998 ; Jennifer JJ. v Scott
KK., 117 A.D.3d 1158, 1160 ), we agree with Family
Court that the mother established, by a preponderance of the
evidence, that the father committed the family offense of
harassment in the second degree (see Matter of James XX.
v Tracey YY., 146 A.D.3d 1036, 1039 ; Matter
of Lynn TT. v Joseph O., 129 A.D.3d at 1130-1131;
Matter of Robert AA. v Colleen BB., 101 A.D.3d 1396,
1399 , lv denied 20 N.Y.3d 860');">20 N.Y.3d 860 ).
Peters, P.J., Garry, Lynch and ...