Opinion
2013-03-5
In re VICTOR S., etc., Petitioner–Respondent, v. KAREEM J.S., Respondent–Appellant.
The Reiniger Law Firm, New York (Douglas H. Reinger of counsel), for appellant. Daniel R. Katz, New York, for respondent.
The Reiniger Law Firm, New York (Douglas H. Reinger of counsel), for appellant. Daniel R. Katz, New York, for respondent.
GONZALEZ, P.J., MAZZARELLI, RENWICK, RICHTER, GISCHE, JJ.
Appeal from order, Family Court, New York County (Carol J. Goldstein, Referee), entered on or about January 23, 2012, which after a hearing, determined that appellant had committed acts that constituted aggravated harassment in the second degree (Penal Law § 240.30), and granted petitioner a one-year order of protection directing appellant to, inter alia, stay away from and cease communication with him and his daughter, unanimously dismissed, without costs, as moot.
Because the order of protection has expired, this appeal is moot ( see Matter of Diallo v. Diallo, 68 A.D.3d 411, 888 N.Y.S.2d 744 [1st Dept. 2009], lv. dismissed14 N.Y.3d 854, 901 N.Y.S.2d 135, 927 N.E.2d 556 [2010] ).
Were we to reach the merits, we would find that a fair preponderance of the evidence (Family Ct. Act § 832), supports the referee's finding that appellant committed acts constituting the family offense of aggravated harassment in the second degree ( seePenal Law § 240.30), warranting the issuance of an order of protection ( seeFamily Ct. Act § 812[1] ). Indeed, “making a telephone call will constitute aggravated harassment in the second degree when it is made with intent to harass, annoy, threaten or alarm another person and is made either in a manner likely to cause annoyance or alarm or with no purpose of legitimate communication” ( Matter of Wendy Q. v. Jason Q., 94 A.D.3d 1371, 1373, 943 N.Y.S.2d 255 [3d Dept. 2012] [internal quotation marks omitted] ). Contrary to appellant' contention, his intent to alarm or annoy petitioner was inferable from his statements about petitioner's daughter, because they constituted a threat that specifically referred to placing the safety of the child in jeopardy ( see People v. Wilson, 59 A.D.3d 153, 154, 872 N.Y.S.2d 124 [1st Dept. 2009], affd.14 N.Y.3d 895, 905 N.Y.S.2d 100, 931 N.E.2d 69 [2010] ).
Appellant set forth no basis to disturb the court's credibility determinations ( see Matter of F.B. v. W.B., 248 A.D.2d 119, 669 N.Y.S.2d 551 [1st Dept. 1998] ).