| Matter of Hirsh v Stern |
| 2010 NY Slip Op 05001 [74 AD3d 967] |
| June 8, 2010 |
| Appellate Division, Second Department |
| In the Matter of Yael Hirsh, Respondent, v Michael Z.Stern, Appellant. |
—[*1] Stanley Hirsch, P.C., Garden City, N.Y. (Karen Bodner of counsel), forrespondent.
In a family offense proceeding pursuant to Family Court Act article 8, Michael Z. Sternappeals (1), as limited by his brief, from so much of an order of the Supreme Court, NassauCounty (Sher, J.) (IDV Part), dated August 31, 2009, as denied those branches of his motionwhich were to dismiss the petition for failure to establish a prima facie case, to direct thepetitioner to undergo a hair follicle specimen test, and to direct the filing of a neglect petitionand order of protection against the petitioner, and (2) an order of protection of the same courtdated October 6, 2009, which, after a hearing, directed him to stay away from the petitioner untilOctober 5, 2010.
Ordered that the order dated August 31, 2009, is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the order of protection is reversed, on the law, without costs or disbursements,and the matter is remitted to the Supreme Court, Nassau County, for a new hearing and a newdetermination thereafter on the branch of the petition which was for the issuance of an order ofprotection.
On or about June 1, 2009, the petitioner filed a family offense petition seeking the entry ofan order of protection in favor of her and against the appellant.
The allegations contained in the petition were sufficient to establish a prima facie case ofharassment in the second degree (see Penal Law § 240.26 [1], [3]), thuswarranting a fact-finding hearing on the matter. Contrary to the appellant's contentions, physicalacts need not be alleged to support a charge of harassment in the second degree (see People vDietze, 75 NY2d 47, 54 [1989]; Matter of Hagopian v Hagopian, 66 AD3d 1021, 1022 [2009]; Matter of Czop v Czop, 21 AD3d958, 959 [2005]).
During the fact-finding hearing, the petitioner testified that the appellant had, inter alia,threatened her physical safety on several occasions, including April 2, 2009. The appellantdenied ever threatening the petitioner and attempted to offer into evidence an audiotape of aconversation that took place between himself and the petitioner on April 2, 2009. The appellanttestified that he had personally recorded the conversation using a pocket cassette recorder, andthat the recording accurately portrayed the parties' conversation on that date. According to theappellant, the audiotape established that he never [*2]threatenedor raised his voice against the petitioner during the conversation on that date. The petitioner'sattorney objected to the admission of the audiotape on the ground that a proper foundation for itsadmission had not been laid. The Supreme Court sustained the objection and the tape was notadmitted into evidence.
The appellant contends that the tape should have been admitted, and that the SupremeCourt's failure to do so was reversible error. We agree. Contrary to the petitioner's contention,"chain of custody . . . [is] not a requirement as to tape recordings" (People vEly, 68 NY2d 520, 527-528 [1986]). Proof that the audiotape had not been altered wasproperly established by the appellant, "a participant to the conversation who testifie[d] that theconversation ha[d] been accurately and fairly reproduced" (People v McGee, 49 NY2d48, 60 [1979], cert denied sub nom. Waters v New York, 446 US 942 [1980]). Since theSupreme Court erred in depriving the appellant of his right to place admissible evidence whichsupported his defense before the fact-finder, and since the alleged information on the tape wascritical to the appellant's defense, the appellant is entitled to a new hearing (see People vMelendez, 296 AD2d 424, 424-426 [2002]), and a new determination thereafter on thebranch of the petition which was for the issuance of an order of protection.
The appellant's remaining contentions either are without merit or need not be considered inlight of our determination. Mastro, J.P., Eng, Leventhal and Roman, JJ., concur.