Opinion
388 CAF 18–02326
05-01-2020
In the Matter of Ashley M. WANDERSEE, Petitioner–Respondent, v. David E. PRETTO, Respondent–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order of protection issued upon a finding that he committed the family offense of harassment in the second degree under Penal Law § 240.26(3). We affirm.
Contrary to respondent's contention, the record supports Family Court's determination that petitioner met her burden of establishing by a fair preponderance of the evidence that respondent committed the family offense of harassment in the second degree (see Family Ct Act §§ 812[1] ; 832; Penal Law § 240.26[3] ). A person commits harassment in the second degree under Penal Law § 240.26(3) when he or she, "with intent to harass, annoy or alarm another person[,] engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose" (see Matter of Rohrback v. Monaco, 173 A.D.3d 1774, 1775, 105 N.Y.S.3d 635 [4th Dept. 2019] ). Although one "isolated incident" is insufficient to establish such a course of conduct ( People v. Chasserot, 30 N.Y.2d 898, 899, 335 N.Y.S.2d 442, 286 N.E.2d 925 [1972] ; see People v. Valerio, 60 N.Y.2d 669, 670, 468 N.Y.S.2d 100, 455 N.E.2d 659 [1983] ), "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding" ( Matter of Amber JJ. v. Michael KK., 82 A.D.3d 1558, 1560, 920 N.Y.S.2d 448 [3d Dept. 2011] [internal quotation marks omitted] ).
Petitioner included two incidents in her family offense petition. In the first, she alleged that she found respondent hiding in her bedroom closet while she was getting dressed in that room. In the second, petitioner alleged that respondent secretly placed a cell phone in petitioner's bedroom with the camera aimed at her bed, and monitored petitioner from his laptop in a nearby room. We conclude that the evidence at the hearing established that respondent committed the conduct alleged in the petition, and that respondent's course of conduct in doing so evidenced a continuity of purpose to harass, annoy or alarm petitioner (see generally Amber JJ., 82 A.D.3d at 1560, 920 N.Y.S.2d 448 ). Although respondent contends that the incident where he hid in petitioner's closet was a joke or that he merely intended to startle petitioner, based on respondent's "conduct as well as the surrounding circumstances," the court had a reasonable basis to infer that respondent's intent was to harass, annoy or alarm petitioner ( People v. Kelly, 79 A.D.3d 1642, 1642, 913 N.Y.S.2d 846 [4th Dept. 2010], lv denied 16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184 [2011] [internal quotation marks omitted]; see generally Matter of Kristine Z. v. Anthony C., 21 A.D.3d 1319, 1320, 803 N.Y.S.2d 331 [4th Dept. 2005], lv dismissed 6 N.Y.3d 772, 811 N.Y.S.2d 338, 844 N.E.2d 793 [2006] ).