| Matter of Gracie C. v Nelson C. |
| 2014 NY Slip Op 03948 [118 AD3d 417] |
| June 3, 2014 |
| Appellate Division, First Department |
[*1]
| In the Matter of Gracie C.,Respondent, v Nelson C., Appellant. |
Neal D. Futerfas, White Plains, for appellant.
Jeffery B. White, New York, for respondent.
Order, Family Court, Bronx County (David Gilman, J.H.O.), entered on or about July11, 2013, which, upon a fact-finding determination that respondent-appellant committedacts constituting menacing in the third degree, disorderly conduct, harassment in thesecond degree, aggravated harassment in the second degree and stalking in the fourthdegree, and entered a two-year order of protection against him in favor of petitioner andher children, unanimously affirmed, without costs.
The finding that respondent-appellant (respondent) committed the family offenses atissue is supported by a fair preponderance of the evidence (see Family Ct Act§ 832), and there is no basis to disturb the court's credibility determinations(see Matter of Melind M. vJoseph P., 95 AD3d 553, 555 [1st Dept 2012]). Respondent failed to preservehis contention that the court should not have admitted petitioner's eldest son's testimonythat he listened in on telephone conversations between respondent and petitioner (seeMatter of F.B. v W.B., 248 AD2d 119 [1st Dept 1998]), and we decline to review itin the interest of justice. In any event, any error was harmless in view of theoverwhelming additional evidence supporting the court's determination (see Matter of Perry v Surplus,112 AD3d 1077, 1080-1081 [3d Dept 2013]).
Respondent also failed to preserve his argument that the harassment charges asapplied to him violated his constitutional right to freedom of speech, and we decline toreview it in the interest of justice. As an alternative holding, we find the argumentunavailing given that the applicable statutes do not "prohibit speech or expression"(People v Shack, 86 NY2d 529, 535 [1995]). Rather, they prohibit onlyillegitimate communication (id.), and respondent's repeated and unwantedcommunications to petitioner were not for legitimate purposes.
Respondent failed to preserve his argument that the harassment statutes at issue areunconstitutionally vague or overbroad, and we decline to review it in the interest ofjustice.
The court properly exercised its discretion in issuing a two-year, rather than aone-year, order of protection (see Family Ct Act § 842).Concur—Tom, J.P., Renwick, Andrias, Freedman and Clark, JJ.