| Matter of Pochat v Pochat |
| 2015 NY Slip Op 00885 [125 AD3d 660] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Christopher A. Pochat,Respondent, v Sheri Ann Pochat, Appellant. |
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and Dori Cohen of counsel),for appellant.
Jan Murphy, Huntington, N.Y., for respondent.
Appeals from (1) an order of fact-finding and disposition of the Family Court,Nassau County (Conrad D. Singer, J.), dated July 19, 2013, and (2) an order of protectionof that court also dated July 19, 2013. The order of fact-finding and disposition, after afact-finding hearing, inter alia, found that Sheri Ann Pochat committed acts constitutingcertain family offenses and placed her on probation for a period of one year. The order ofprotection directed her to stay away from the petitioner until and including July 18,2015.
Motion by the respondent to dismiss both appeals on the ground that they have beenrendered academic. By decision and order on motion of this Court dated October 15,2014, the motion was referred to the panel of Justices hearing the appeals fordetermination upon the argument or submission thereof.
Ordered that the branch of the motion which is to dismiss the appeal from so much ofthe order of fact-finding and disposition as placed the appellant on probation for a periodof one year is granted, and the motion is otherwise denied; and it is further,
Ordered that the order of fact-finding and disposition is modified, on the law and thefacts, by deleting the provisions thereof finding that the appellant committed the familyoffenses of aggravated harassment in the second degree, harassment in the first degree,and disorderly conduct; as so modified, the order of fact-finding and disposition isaffirmed insofar as reviewed, without costs or disbursements; and it is further;
Ordered that the order of protection is affirmed, without costs or disbursements.
The appeal from so much of the order of fact-finding and disposition as placed theappellant on probation for a period of one year must be dismissed as academic, as theperiod of probation has expired by its own terms (see Matter of Hubbard v Ponce DeLeon, 108 AD3d 628[2013]; Matter of Rochester vRochester, 26 AD3d 387 [2006]; Matter of Samora v Coutsoukis, 292AD2d 390 [2002]). However, the appeal from so much of the order of fact-finding anddisposition as found that the appellant committed certain family offenses is not subject todismissal as academic, "in light of the [*2]enduringconsequences which may potentially flow from a finding that the appellant committed afamily offense" (Matter ofWallace v Wallace, 45 AD3d 599, 599 [2007]; see Matter of DeSouza-Brown vBrown, 38 AD3d 888 [2007]; Matter of Rochester v Rochester, 26AD3d at 388).
The finding that the appellant committed the family offense of aggravatedharassment in the second degree must be vacated, as the Court of Appeals has declaredthat Penal Law § 240.30 (1), as it existed at the time of the decision on thepetition, was unconstitutionally vague and overbroad (see People v Golb, 23 NY3d455, 467-468 [2014]). Additionally, we find that the evidence did not establish thatthe appellant committed the family offenses of harassment in the first degree ordisorderly conduct (see Matterof Cassie v Cassie, 109 AD3d 337 [2013]; Matter of Marquardt v Marquardt, 97 AD3d 1112[2012]).
However, we find that a fair preponderance of the credible evidence adduced at thehearing established that the appellant committed the family offense of harassment in thesecond degree, when, with the intent to harass, annoy, or alarm another person, sheengaged in a course of conduct which alarmed and seriously annoyed such other person,and which served no legitimate purpose (see Family Ct Act § 812[1]; Penal Law § 240.26 [3]). Moreover, we reject the appellant'scontention that her conduct was protected by the First Amendment (see People vShack, 86 NY2d 529, 535-536 [1995]).
Based on the foregoing, there is no basis to disturb the order of protection. Skelos,J.P., Hall, Sgroi and Hinds-Radix, JJ., concur.