Opinion
10053
10-10-2019
In re Maame N.B., Petitioner–Appellant, v. Godwin E. D.C., Respondent–Respondent.
Daniel R. Katz, New York, for Appellant. Kenneth M. Tuccillo, Hastings on Hudson, for Respondent.
Daniel R. Katz, New York, for Appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for Respondent.
Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
The determination that respondent's actions were insufficient to constitute the family offenses of either menacing in the third degree or harassment in the second degree is supported by a fair preponderance of the evidence ( Family Ct. Act. § 832 ). The offense of menacing in the third degree was necessarily dismissed since there was no testimony that respondent's conduct was physically menacing ( Penal Law § 120.15 ; Matter of Akheem B. , 308 A.D.2d 402, 403, 764 N.Y.S.2d 630 [1st Dept. 2003], lv denied 1 N.Y.3d 506, 776 N.Y.S.2d 221, 808 N.E.2d 357 [2004] ). The claim of offense of harassment in the second degree was also deficient because petitioner failed to adduce evidence that respondent engaged in a course of conduct or repeatedly committed acts which alarmed or seriously annoyed petitioner, and which served no legitimate purpose ( Penal Law § 240.26[3] ; Matter of Thelma U. v. Miko U. , 145 A.D.3d 527, 528, 43 N.Y.S.3d 321 [1st Dept. 2016] ). Petitioner's testimony that respondent threatened to kill her during a November 4, 2016 argument was not found credible by the trial court. Although petitioner testified that respondent repeatedly called her and sent her numerous emails daily, she only introduced two emails at the hearing, one of which, although unpleasant, did not rise to the level of harassment and the other was found inadmissible ( id. ).
We have considered petitioner's remaining arguments and find them unavailing.