IN RE: D. C. (2025)

Order, Family Court, New York County (Jonathan H. Shim, J.), entered on or about October 24, 2022, which, upon a fact-finding determination that respondent committed the family offenses of harassment in the second degree, aggravated harassment in the second degree, and disorderly conduct, granted a two-year order of protection in favor of petitioner and her two children, unanimously modified, on the law, to the extent of vacating the finding of disorderly conduct, and otherwise affirmed, without costs.

Although the order of protection has expired by its own terms, this appeal is not rendered moot, as the order finding that respondent committed family offenses still may impose significant enduring consequences upon him (see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 671–673, 3 N.Y.S.3d 288, 26 N.E.3d 1143 [2015];  Matter of Jasna Mina W. v. Waheed S., 170 A.D.3d 572, 572, 97 N.Y.S.3d 49 [1st Dept. 2019]).

As to the merits, Family Court's decision after the fact-finding hearing sets forth the facts that the court deemed essential as to the family offenses of harassment in the second degree and aggravated harassment in the second degree (CPLR 4213[b]).  Petitioner's testimony that respondent caused her to fear for herself and their children by sending her messages over Facebook Messenger threatening to kill her and put her “to sleep” supports a finding by a fair preponderance of the evidence that respondent committed the family offenses of harassment in the second degree (Family Court Act § 832;  Penal Law § 240.26[3]) and aggravated harassment in the second degree (Penal Law § 240.30[1][a]).  The communications served no legitimate purpose and caused petitioner to be alarmed and to have a reasonable fear of harm to her physical safety (Penal Law §§ 240.26[3], 240.30[1][a];  see Matter of Monique WW. v. Dean XX., 233 A.D.3d 1413, 1415, 222 N.Y.S.3d 807 [3d Dept. 2024];  Matter of Edward B. v. Elizabeth T., 156 A.D.3d 423, 424, 64 N.Y.S.3d 519 [1st Dept. 2017]).  Furthermore, respondent's intent to harass or alarm petitioner may be inferred from his threats to kill her (see Matter of Phyllis H. v. Didier C., 182 A.D.3d 511, 512, 120 N.Y.S.3d 773 [1st Dept. 2020];  Matter of Ramona A.A. v. Juan M.N., 126 A.D.3d 611, 611, 3 N.Y.S.3d 599 [1st Dept. 2015]).  The court's decision to credit petitioner's testimony over respondent's is entitled to deference, and we find no basis to disturb that credibility determination (see Matter of Lisa S. v. William V., 95 A.D.3d 666, 666, 943 N.Y.S.2d 886 [1st Dept. 2012]).

Family Court did not specify which facts supported the finding that respondent committed the family offense of disorderly conduct (CPLR 4213[b]).  However, remand is not required because the record is sufficiently complete to allow this Court to make an independent review and draw its own conclusions (see Matter of Dayonna W. v. Jhon S., 201 A.D.3d 539, 540, 157 N.Y.S.3d 361 [1st Dept. 2022];  Matter of Allen v. Black, 275 A.D.2d 207, 209, 712 N.Y.S.2d 487 [1st Dept. 2000]).  Upon that review, we vacate the determination that respondent's actions constituted the family offense of disorderly conduct.  Under Penal Law § 240.20(3), a person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he uses abusive or obscene language in a public place.  The evidence that respondent sent petitioner private messages through Facebook Messenger does not support a finding that he acted with “the intent to cause, or recklessness in causing, public harm” (Matter of Linda H. v. Ahmed S., 188 A.D.3d 597, 599, 136 N.Y.S.3d 263 [1st Dept. 2020]).