Opinion
2015-03-20
In the Matter of Wendy R. FISHER, Petitioner–Respondent, v. Justin C. HOFERT, Respondent–Appellant.
McKinney's Penal Law § 240.30(1) Anna Jost, Tonawanda, for Respondent–Appellant.
Recognized as Unconstitutional
McKinney's Penal Law § 240.30(1) Anna Jost, Tonawanda, for Respondent–Appellant.
Bridget L. Field, Rochester, for Petitioner–Respondent.
Jeffrey D. Oshlag, Attorney for the Child, Batavia.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, and DeJOSEPH, JJ.
MEMORANDUM:
Respondent father appeals from an order of protection entered upon a finding that he committed the family offense of aggravated harassment in the second degree against petitioner mother ( seePenal Law § 240.30[1][a]; see also Family Ct. Act § 812[1] ). We note at the outset that the order of protection has expired but, “given the totality of the enduring legal and reputational consequences of the contested order of protection, respondent's appeal from that order is not moot” ( Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 673, 3 N.Y.S.3d 288, 26 N.E.3d 1143).
The Court of Appeals has determined that Penal Law § 240.30(1), which proscribes communications made “in a manner likely to cause annoyance or alarm,” is unconstitutionally vague and overbroad ( see People v. Golb, 23 N.Y.3d 455, 467, 991 N.Y.S.2d 792, rearg. denied24 N.Y.3d 932, 993 N.Y.S.2d 543, 17 N.E.3d 1139). Thus, the statute cannot serve as the basis for a finding that respondent committed a family offense ( see generally Matter of Kakwani v. Kakwani, 124 A.D.3d 658, 659, 1 N.Y.S.3d 349; Matter of Lystra Fatimah N. v. Rafael M., 122 A.D.3d 499, 499, 997 N.Y.S.2d 624). Inasmuch as Family Court concluded that petitioner failed to establish by a preponderance of the evidence that respondent had committed either of two other family offenses alleged in the petition, we reverse the order and dismiss the petition.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.