Boyd v. Boyd

Appellate Division of the Supreme Court of New York

Boyd v. Boyd

193 A.D.2d 1039, 598 N.Y.S.2d 380, 1993 N.Y. App. Div. LEXIS 5346

Appellate Division of the Supreme Court of the State of New York·Decided May 27, 1993·Published·Cited by 2 cases

Opinion

—Appeal from an order of the [1040] Family Court of Saratoga County (James, J.), entered January 8, 1992, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 8, for a temporary order of protection.

Upon our review of the record, petitioner demonstrated by a fair preponderance of the evidence (Family Ct Act § 832) that respondent committed the family offense of harassment within the meaning of Family Court Act § 812 (see, Matter of Dutz v Colon, 183 AD2d 715). Family Court credited petitioner’s testimony in support of her application (see, Matter of Joseph P. B. v Margaret O’D., 161 AD2d 545) and the record supports its conclusion that respondent’s actions alarmed or annoyed petitioner and had no legitimate purpose (see, Matter of Rogers v Rogers, 161 AD2d 766; see also, Penal Law former § 240.25 [5]). In addition, the circumstances surrounding respondent’s actions showed that the requisite element of intent existed (see, Matter of Holcomb v Holcomb, 176 AD2d 409). As a final matter, the fact that Penal Law former § 240.25 (2) has been found unconstitutional (see, People v Deitze, 75 NY2d 47) does not mandate a different conclusion because Family Court did not base its finding on that section (see, Matter of Holcomb v Holcomb, supra). Respondent’s remaining contentions have been considered and rejected for lack of merit.

Weiss, P. J., Levine, Mercure and Mahoney, JJ., concur. Ordered that the order is affirmed, with costs.

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—Appeal from an order of the [1040] Family Court of Saratoga County (James, J.), entered January 8, 1992, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 8, for a temporary order of protection.

Upon our review of the record, petitioner demonstrated by a fair preponderance of the evidence (Family Ct Act § 832) that respondent committed the family offense of harassment within the meaning of Family Court Act § 812 (see, Matter of Dutz v Colon, 183 AD2d 715). Family Court credited petitioner’s testimony in support of her application (see, Matter of Joseph P. B. v Margaret O’D., 161 AD2d 545) and the record supports its conclusion that respondent’s actions alarmed or annoyed petitioner and had no legitimate purpose (see, Matter of Rogers v Rogers, 161 AD2d 766; see also, Penal Law former § 240.25 [5]). In addition, the circumstances surrounding respondent’s actions showed that the requisite element of intent existed (see, Matter of Holcomb v Holcomb, 176 AD2d 409). As a final matter, the fact that Penal Law former § 240.25 (2) has been found unconstitutional (see, People v Deitze, 75 NY2d 47) does not mandate a different conclusion because Family Court did not base its finding on that section (see, Matter of Holcomb v Holcomb, supra). Respondent’s remaining contentions have been considered and rejected for lack of merit.

Weiss, P. J., Levine, Mercure and Mahoney, JJ., concur. Ordered that the order is affirmed, with costs.

Boyd v. Boyd, 193 A.D.2d 1039, 598 N.Y.S.2d 380, 1993 N.Y. App. Div. LEXIS 5346 (N.Y. Ct. App. 1993).

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