Opinion
14836 Dkt. No. O-33422/14 Case No. 2018-04374
12-14-2021
In the Matter of GIOVANNI DE M., Petitioner–Respondent, v. NICK W., also known as Nicholas W., Respondent–Appellant.
Nicholas W., appellant pro se.
Nicholas W., appellant pro se.
Kern, J.P., Scarpulla, Mendez, Shulman, JJ.
Order of fact-finding and disposition, Family Court, New York County (Marva A. Burnett Esq., Referee), entered on or about March 2, 2018, which, after a hearing, determined that respondent committed the family offenses of aggravated harassment in the second degree, harassment in the second degree, and menacing in the second degree, unanimously modified, on the law, to vacate the finding of aggravated harassment in the second degree, and otherwise affirmed, without costs.
The determination that respondent committed the family offenses of harassment in the second degree ( Penal Law § 240.26[3] ) and menacing in the second degree ( Penal Law § 120.14[2] ) is supported by a fair preponderance of the evidence at the fact-finding hearing (see Family Court Act § 832 ; see also Matter of Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ). Petitioner testified that, on numerous occasions over the course of several years, respondent, upset that petitioner had married his mother, threatened him with bodily harm, confronted him, poking his finger and cursing at him, and slapped his face, causing him to feel nervous and shaken up. This evidence shows that respondent placed petitioner in reasonable fear of physical injury (see Matter of Carmen L. v. Rafael R., 163 A.D.3d 436, 437, 76 N.Y.S.3d 560 [1st Dept. 2018] [menacing]) and that his actions alarmed or seriously annoyed petitioner and served no legitimate purpose (see Matter of Anthony B. v. Judy M., 167 A.D.3d 476, 87 N.Y.S.3d 883 [1st Dept. 2018] [harassment]). The court properly inferred from his actions and the surrounding circumstances that respondent intended to cause these effects (see Matter of Ramona A.A. v. Juan M.N., 126 A.D.3d 611, 3 N.Y.S.3d 599 [1st Dept. 2015] ). The court's credibility determinations are entitled to great deference (see Matter of Everett C., 61 A.D.3d at 489, 878 N.Y.S.2d 301 ).
However, the determination that respondent committed the family offense of aggravated harassment in the second degree based on Penal Law § 240.30(1)(a) as it existed before amendment in July 2014 must be vacated because the statute was held to be unconstitutionally vague (see People v. Golb, 23 N.Y.3d 455, 466–467, 991 N.Y.S.2d 792, 15 N.E.3d 805 [2014], cert denied 574 U.S. 1079, 135 S.Ct. 1009, 190 L.Ed.2d 839 [2015] ; Matter of Lystra Fatimah N. v. Rafael M., 122 A.D.3d 499, 997 N.Y.S.2d 624 [1st Dept. 2014] ).
We have considered respondent's remaining arguments and find them unavailing.