| Matter of Ebony J. v Clarence D. |
| 2007 NY Slip Op 09868 [46 AD3d 309] |
| December 13, 2007 |
| Appellate Division, First Department |
| In the Matter of Ebony J., Respondent, v Clarence D.,Appellant. |
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Order of disposition, Family Court, New York County (Sara P. Schechter, J.), entered on orabout January 31, 2006, which, after a fact-finding hearing, determined that respondent-appellantcommitted acts constituting harassment and issued a two-year order of protection, unanimouslyreversed, on the law, without costs, and the order of protection vacated.
Although the court did not specify the degree of harassment it found respondent to havecommitted, a fair preponderance of the evidence at the fact-finding hearing does not support afinding of harassment in either the first or second degree, each of which is an enumerated familyoffense upon which the issuance of an order of protection may be premised (Family Ct Act§ 812 [1]). The family offense petition is based solely upon conduct that occurred onOctober 28, 2005. At the fact-finding hearing, petitioner never testified concerning the factalleged in the petition, to wit, that on that date, respondent grabbed her while she was holding theparties' child. No evidence was presented at the hearing that there was any physical contactbetween the parties on that date. In any event, an isolated incident does not constitute a course ofconduct to support a finding of harassment in the first degree (see Penal Law § 240.25;People v Wood, 59 NY2d 811 [1983]). Nor is the evidence sufficient to support a findingof harassment in the second degree, given the facts that petitioner gave respondent her address sothat he could visit his child, respondent went to petitioner's residence on the day in question toserve her with court papers seeking visitation with the parties' son, petitioner did not reportrespondent's threat to have his wife beat petitioner up to the police, and petitioner calledrespondent on the telephone to talk to him the day after the incident. The record is insufficient tosupport the inference that respondent intended to harass, annoy or alarm petitioner by his conducton that day (Penal Law § 240.26). Concur—Lippman, P.J., Mazzarelli, Andrias,Buckley and Sweeny, JJ.