Opinion
XXXXX.
Decided September 24, 2010.
The petitioner M.R. asserts that the respondent A.R, her adopted brother, engaged in a course of conducted designed to harass and intimidate her. The petitioner credibly testified at trial about the turbulent relationship she has with the respondent. For instance, the respondent would angrily yell and curse at the petitioner during telephone calls. The last telephone call she engaged in with respondent resulted in him threatening her that she "better watch her back." Thereafter, the petitioner returned to her home after being hospitalized with a stroke to find that the respondent had moved into her home of 15 years without authorization and locked her out by changing the locks to the premises. When the petitioner was returned to possession of her home via court order, she discovered that many of her belongings had been removed by the respondent, including her air conditioner, washing machine, heater and some furniture. According to the petitioner, the removal of these items essentially rendered her home uninhabitable due to her asthma and heart ailment.
When called as the petitioner's witness, the respondent invoked his Constitutional right against self-incrimination as a basis for declining to testify. The respondent, through counsel, indicated that he would abide by his decision despite the possibility of a negative inference being drawn from his refusal to answer questions. The respondent did not present any witnesses or submit any evidence in opposition to the petition.
The Court finds after trial that the petitioner has demonstrated by a preponderance of the evidence (NY Family Ct. Act § 832) that the respondent committed acts against the petitioner constituting aggravated harassment in the second degree. NY Penal L. § 240.30. The respondent's conduct during telephone calls, including threatening petitioner that she "better watch herself," had its intended effect of intimidating and alarming the petitioner. See Boulerice v. Heaney , 45 AD3d 1217 (3d Dep't 2007) (finding that respondent committed the family offense of aggravated harassment in the second degree when he threatened the petitioner over the phone, warning that she "better watch [her] back at all times"). Indeed, the respondent carried through with his oral threat with additional harassing activities, including usurping petitioner's home while she was hospitalized and then proceeding to render the premises uninhabitable to a person with petitioner's well-known chronic ailments. These acts, when taken together, firmly support a finding that the respondent committed acts constituting aggravated harassment in the second degree.
Furthermore, the Court draws a negative inference against the respondent based upon his refusal to testify in this matter when called by the petitioner. Marine Midland Bank v. John E. Russo Produce Co., 50 NY2d 31 (1980); Comm'r of Soc. Services v. Philip De G., 59 NY2d 137 (1983); Jane PP v. Paul QQ., 65 NY2d 994 (1985); Cukerstein v. Wright , 68 AD3d 1367 (3d Dep't 2009). The Court uses the negative inference to fill the gap between the petitioner's hearsay information and respondent's personal knowledge. Moreover, while the respondent did not testify he expressed non-verbal entertainment in the form of smirks at the fear his conduct elicited from the petitioner. See Eschbach v. Eschbach, 56 NY2d 167 (1982); John A. v. Bridget M. , 16 AD3d 324 (1st Dep't 2005); Fanelli v. Fanelli, 215 AD2d 718 (2d Dep't 1995). Thus, the Court partially draws upon the above negative inference as it relates to the petitioner's heightened fear of further harm from the respondent in fashioning a remedy. In particular, the petitioner testified that she was aware that the respondent was a criminal that had been incarcerated for burglary, a particularly troubling link given the fact that the respondent broke into her home while she was hospitalized and stole her property. While the respondent correctly notes that this information was not submitted in the form of a certified court record, the information could have also been admitted had the respondent testified. While unnecessary given the other facts elicited at trial, the Court considers the respondent's known felony conviction as it relates to the objective reasonableness of petitioner's fear that the respondent would harm her in the absence of an order of protection and the extent of the provisions necessary to protect petitioner in the final order of protection.
Based upon the foregoing, IT IS HEREBY ORDERED that the petition is GRANTED based on a fair preponderance of the credible evidence that the respondent committed acts constituting the family offense of aggravated harassment in the second degree against the petitioner.
And the Court further finds the following aggravating circumstances: Respondent exposed the petitioner, a family member, to physical injury and like incidents, behaviors, and occurrences constituting immediate ongoing danger to her and her health.
ORDERED that the Respondent shall for a period of five years observe the conditions of behavior specified in the Order of Protection entered and annexed to and made a part of this order.