| Matter of Amber JJ. v Michael KK. |
| 2011 NY Slip Op 02515 [82 AD3d 1558] |
| March 31, 2011 |
| Appellate Division, Third Department |
| In the Matter of Amber JJ., Appellant, v Michael KK.,Respondent. |
—[*1] Koweek, Cranna & McEvoy, Hudson (Dennis McEvoy of counsel), for respondent. Letty J. Manne, Craryville, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.),entered August 16, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 8, for an order of protection.
The parties, unmarried and not living together, are the parents of a son (born in 2008).Petitioner (hereinafter the mother), who has custody of the child, commenced this proceeding inApril 2010, seeking an order of protection against respondent (hereinafter the father). At theensuing fact-finding hearing, the mother testified that, on April 20, 2010, the father came over toher apartment to visit their son but soon began yelling at her and calling her derogatory names infront of the child. According to the mother, the verbal abuse continued for approximately an hourand she was too scared to do anything to stop it. After the doorbell rang, she let in three of herfriends and then tried to pick up her son to leave. However, she stated that the father thengrabbed the child's ankle and told the mother he did not want her to leave. She testified that twoof her male friends told the father repeatedly to let go of the boy, but he did not do so untilapproximately "a good four minutes" had passed.[FN*]The mother then took the child and fled the [*2]apartment withthe father following behind yelling obscenities and threats at her and her friends, indicating thatshe was "going to pay for it" and that he was going to take the son away from her. The mothertestified that she waited two days to report the incident to the police because she was afraid thatthe father and his friends were out on the street "looking for [her]."
The mother was the sole witness at the fact-finding hearing. Finding her testimony credible,Family Court thereafter found by a preponderance of the evidence that the father had committedthe family offense of harassment. The court issued an order of protection requiring the father tostay away from the mother and their son for a period of one year. The father appeals.
Family Court's family offense finding was supported by the record. The mother bore theburden of demonstrating that the father committed a family offense by a preponderance of theevidence (see Family Ct Act § 832; Matter of Chadwick F. v Hilda G., 77 AD3d 1093, 1093-1094[2010], lv denied 16 NY3d 703 [2011]). As relevant herein, "[a] person is guilty ofharassment in the second degree when, with intent to harass, annoy or alarm another person. . . [h]e or she engages in a course of conduct . . . which alarm[s] orseriously annoy[s] such other person and which serve[s] no legitimate purpose" (Penal Law§ 240.26 [3]). While there is no question that an isolated incident cannot support a findingof harassment (see People v Wood, 59 NY2d 811, 812 [1983]; Matter of Chadwick F.v Hilda G., 77 AD3d at 1094), "a pattern of conduct composed of a series of acts over aperiod of time, however short, evidencing a continuity of purpose" can support such a finding(People v Murray, 167 Misc 2d 857, 861 [1995] [internal quotation marks and citationomitted]).
Here, Family Court expressly found that the father's actions in the mother's apartment onApril 20, 2010 were intended solely to harass, annoy or alarm her. Similarly, the court found thatthe father's later conduct in the street whereby he yelled obscenities and threats at the mother'sfriends was committed in her presence with the intent to intimidate her and clearly served nolegitimate purpose. According due deference to the court's credibility determinations (see Matter of Shelly RR. v Frank SS.,72 AD3d 1426, 1426-1427 [2010], lv denied 15 NY3d 705 [2010]; Matter of Boulerice v Heaney, 45AD3d 1217, 1218-1219 [2007]), we find that the proof of the father's course of conduct,beginning with the lengthy verbal abuse and aggressive behavior in her apartment, followed bythe taunts and threats he later yelled in the street, was sufficient to establish by a fairpreponderance of the evidence that he engaged in acts constituting harassment in the seconddegree (see Family Ct Act § 832; Matter of Chadwick F. v Hilda G., 77AD3d at 1093-1094; Matter ofCukerstein v Wright, 68 AD3d 1367, 1369 [2009]).
The remaining arguments raised by the father have been examined and found to beunpersuasive.
Mercure, J.P., Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The mother testified that thefather held the child's ankle so tightly a bruise was left on his leg and, consequently, FamilyCourt ordered the Columbia County Department of Social Services to complete a child protectiveinvestigation into the allegations (see Family Ct Act § 1034).