| Matter of Patricia H. v Richard H. |
| 2010 NY Slip Op 08658 [78 AD3d 1435] |
| November 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Patricia H., Appellant, v Richard H.,Respondent. |
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Egan Jr., J. Appeal from an order of the Family Court of Otsego County (Lambert, J.), enteredOctober 22, 2009, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Actarticle 8, for an order of protection.
Petitioner (hereinafter the mother) and respondent (hereinafter the stepfather) were married in 2004and divorced in 2006. The mother has a child (born in 1999) from a previous relationship. In April2009, the mother commenced this family offense proceeding alleging harassment and seeking an orderof protection for the child and for another one of her children, alleging that, while the child was walkinghome from school with a friend, the stepfather followed them in his car. Family Court issued atemporary order of protection but, following a fact-finding hearing, Family Court vacated the temporaryorder and declined to issue a final order of protection. On appeal, the mother argues that she wasimproperly precluded from testifying as to the history she and the child had with the stepfather and as tostatements made to her by the child over the telephone during the incident in question.
The mother testified that earlier on the day in question, she had given the child permission to walkto a friend's house after school and that, at approximately 3:10 p.m., she received what shecharacterized as a "panicked" phone call from the child. When the stepfather raised an objection to thistestimony, Family Court did not permit the mother to testify to the [*2]statements made to her by the child in this call. Family Court alsoprecluded the mother from testifying about the past history that the stepfather had with her and thechild. The stepfather conceded in his testimony that he had followed the children, but claimed that hedid not initially know their identities.
Initially, we agree with the mother that Family Court erred in precluding her from presenting proofof the stepfather's history with her and the child. A family offense must be established by a fairpreponderance of the evidence through the admission of "competent, material and relevant evidence"(Family Ct Act § 834; see § 832; Matter of Charles E. v Frank E., 72 AD3d 1439, 1441 [2010]). "Aperson is guilty of harassment in the second degree when, with the intent to harass, annoy or alarmanother person . . . [h]e or she follows a person in or about a public place" (Penal Law§ 240.26 [2]). Since "[o]ften there is no direct evidence of a [respondent's] mental state"(People v Smith, 79 NY2d 309, 315 [1992]), intent may "be inferred from the act itself" orfrom the respondent's "conduct and the surrounding circumstances" (People v Bracey, 41NY2d 296, 301 [1977] [internal quotation marks and citations omitted]; see Matter of Kristine Z. v Anthony C., 21AD3d 1319, 1320 [2005], lv dismissed 6 NY3d 772 [2006]). Prior uncharged crimes orbad acts may be admitted to establish motive, intent, to "provide necessary background or [to]complete a witness's narrative" (People vTarver, 2 AD3d 968, 969 [2003]; see People v Meseck, 52 AD3d 948, 950 [2008], lv denied 11NY3d 739 [2008]; People v Doyle, 48AD3d 961, 964 [2008], lv denied 10 NY3d 862 [2008]; People v Betters, 41 AD3d 1040,1042 [2007]).
Here, the mother was precluded from testifying about the stepfather's relationship with the child'sbiological father and allegations that the biological father threatened to kidnap her children, and that thetwo attempted to coerce her children into running away. The substance of this testimony is relevant indetermining whether, by his conduct, the stepfather's intent was to harass, annoy or alarm the child, orwhether the stepfather followed the child in his car for some other purpose. Accordingly, because themother was prevented from offering proof regarding the stepfather's history with her and the child, weremit this matter to Family Court for a new hearing (see Matter of Elliot v Marble, 49 AD3d 923, 925 [2008]; Matter of Mosso v Mosso, 6 AD3d827, 828 [2004]).
Finally, the mother's argument that the child's statements fall within the excited utterance hearsayexception was not raised before Family Court and is therefore not preserved for our review (seePeople v Johnson, 61 NY2d 932, 934 [1984]; Liuni v Haubert, 289 AD2d 729, 729[2001]).
Mercure, J.P., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Family Court of Otsego County for furtherproceedings not inconsistent with this Court's decision.