| Matter of Tamara A. v Anthony Wayne S. |
| 2013 NY Slip Op 06933 [110 AD3d 560] |
| October 24, 2013 |
| Appellate Division, First Department |
| In the Matter of Tamara A.,Respondent, v Anthony Wayne S., Appellant. |
—[*1] Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), forrespondent. Tamara A. Steckler, The Legal Aid Society, New York (Patricia S. Collela ofcounsel), attorney for the child.
Order of protection, Family Court, Bronx County (Monica Drinane, J.), entered on orabout October 18, 2012, and in force until October 12, 2014, after a hearing, orderingrespondent, inter alia, to stay away from petitioner and the subject child, unanimouslyaffirmed, without costs.
A fair preponderance of the evidence supports the court's finding that respondentcommitted acts that would constitute harassment in the second degree and disorderlyconduct (see Family Ct Act §§ 812 [1]; 821 [1]; 832). A person isguilty of harassment in the second degree when, "with intent to harass, annoy or alarmanother person . . . [h]e . . . subjects such other person tophysical contact, or attempts or threatens to do the same" (Penal Law § 240.26 [1];see e.g. McGuffog v Ginsberg, 266 AD2d 136 [1st Dept 1999]). A person isguilty of disorderly conduct when, "with intent to cause public inconvenience, annoyanceor alarm, or recklessly creating a risk thereof," he engages in "violent, tumultuous orthreatening" behavior (Penal Law § 240.20 [1]; see e.g. Matter of Clark vOrmiston, 101 AD3d 870, 870-871 [2d Dept 2012]). Petitioner testified thatwhile she and respondent were sitting in the Family Court waiting room, respondentstood up, faced her, and said, "[S]omeone is going to get a bullet in their head."Petitioner, the child's maternal grandmother, testified that she believed respondent wastalking about her, because she was preparing to adopt the child. She testified that she wasafraid of respondent because they never got along, he had treated her with disrespect, andhe had assaulted her daughter. Petitioner also testified that immediately after respondentmade the statement, agency caseworkers who were in the waiting room entered thecourtroom and informed the court. Petitioner's testimony was undisputed. Although thecourt adjourned the hearing to allow respondent to testify, he later declined to do so.
Contrary to respondent's contention, a single incident is legally sufficient to support afinding of harassment in the second degree (see Matter of Victor S. v Kareem J.S., 104 AD3d 405 [1stDept 2013]). The court properly drew a negative inference from respondent's failure totestify (see Matter of AlfordIsaiah B. [Alford B.], 107 AD3d 562 [1st Dept 2013]). The court [*2]properly questioned petitioner, who at the time wasproceeding pro se (see Matter ofKrista I. v Gregory I., 8 AD3d 696, 699 [3d Dept 2004]). Upon review of theavailable transcript of the July 23, 2012 hearing, we find that the court harbored no biasagainst respondent. Concur—Andrias, J.P., Friedman, Acosta, DeGrasse andFreedman, JJ.