| Matter of Amy SS. v John SS. |
| 2009 NY Slip Op 09100 [68 AD3d 1262] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Amy SS., Respondent, v John SS.,Appellant. |
—[*1] Victor B. Carrascoso, Cooperstown, for respondent. Sheila M. Hurley, Law Guardian, Catskill.
Kavanagh, J. Appeal from an order of the Family Court of Otsego County (Burns, J.),entered July 23, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 8, for an order of protection.
Petitioner and respondent have one son (born in 2003), who resides with petitioner and hasbeen in her custody since his birth. Respondent is incarcerated and has had no contact with thechild since he was two years old.[FN*]In April 2008, petitioner commenced this Family Ct Act article 8 proceeding alleging thatrespondent had committed the family offense of aggravated harassment in the second degreeagainst her and sought an order of protection barring him from having any contact with her andthe child. In support of her petition, petitioner alleged that she had received two threateningletters from respondent and one from an inmate that she did not [*2]know who had been incarcerated with respondent for a time in thesame correctional facility. After a hearing was held on the petition at which respondent appearedby telephone, Family Court found that respondent had committed the family offense ofaggravated harassment in the second degree (see Family Ct Act § 812 [1]) andissued an order of protection prohibiting respondent from having any contact with petitioner orthe child (see Family Ct Act § 841 [d]; § 842). Respondent now appeals.
Respondent, while acknowledging that he sent petitioner the two letters, denies that theywere threatening and claims that the allegations contained in the petition have not been proven,as they must in a family offense proceeding, by a fair preponderance of the evidence (seeFamily Ct Act § 832; Matter ofCruz v Cruz, 55 AD3d 992, 995 [2008]; Matter of Mauzy v Mauzy, 40 AD3d 1147, 1148 [2007]). In thatregard, respondent points to the fact that petitioner, by her own admission, did not initially findeither letter threatening and claims that no evidence has been presented that established that heknew or had any involvement in the letter sent to petitioner by the other inmate.
As for the two letters that respondent sent to petitioner, the contents of each establishes thatpetitioner had every reason to be alarmed after receiving them and was justified in believing thatthey were sent with the intent of alarming and annoying her (see Penal Law §240.30). In one letter, respondent warned petitioner to "stop and think about one thing right nowand it is that [he could] put [her fiancÉ] away" as well as the fact that he had all day, everyday to "get information" on her fiancÉ. He went on to warn petitioner in the letter that sheshould be careful about what she did to him and he stated that if "you lie to me . . .you will have the worst nightmares you've ever had in your life trust me." Each letter, whenfairly read, had an unmistakable tone that carried ominous implications for petitioner's safetyand, given the circumstances under which she received them, provided ample support for FamilyCourt's conclusion that respondent had committed a family offense in writing and sending themto her (see Family Ct Act § 812 [1]; Penal Law § 240.30).
As for the letter petitioner received from the other inmate, it is impossible to ignore the factthat this inmate had, for a time, been confined in the same correctional facility as respondent andthat the men knew each other. It is obvious from the letter's content that this inmate had contactwith respondent about petitioner before mailing the letter. In that regard, the inmate stated thathe had petitioner's name and address "for quite sometime [sic] now" and had notcontacted her earlier because he did not want to get her "into trouble [with her] husband." Hisinquiries about her marital status and employment prospects in the area where she lived justifiedpetitioner's concerns about this letter and lent support to her belief that respondent had a hand init being sent to her. This letter, when viewed in context with the letters that respondent admitssending petitioner, established by a fair preponderance of the credible evidence that respondentcommitted the crime of aggravated harassment in the second degree (see Penal Law§ 240.30; Matter of Gil v Gil,55 AD3d 1024, 1025 [2008]; Matter of Boulerice v Heaney, 45 AD3d 1217, 1218-1219 [2007];Matter of Draxler v Davis, 11AD3d 760, 760-761 [2004]; compare Matter of Smith v Smith, 24 AD3d 822, 823 [2005]).
As for the provision in the order of protection barring respondent from having any contactwith his son, we note that he has never had any type of relationship with the child and previouslyconsented to the entry of an order of protection that contained a similar provision (seeFamily Ct Act §§ 841, 842). Given the apparent threat that respondent presents topetitioner and her fiancÉ, and the fact that he has previously been convicted of sexualabuse in the first degree [*3]and endangering the welfare of achild, we find that Family Court's decision to include the child in the order of protection was aproper exercise of its discretion (see Family Ct Act § 841 [d]; § 842).
Cardona, P.J., Mercure, Spain and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The parties had a prioragreement that prohibited respondent from contacting the child, but required petitioner toprovide photographs to him periodically. Family Court has since relieved petitioner of thatobligation (see Matter of John SS. vAmy SS., 61 AD3d 1305, 1306 n 2 [2009]).