INTENT TO HARASS NOT DEMONSTRATED; EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL.
The Fourth Department determined the evidence did not support an intent to harass and the family offense petition was dismissed. The court noted the fact that the related protective order had expired did not render the appeal moot because the order still imposes significant enduring consequences that can be relieved by an appellate decision:
The Referee found that respondent committed a family offense, i.e., harassment in the second degree, based upon the Referee's conclusion that respondent told petitioner during a lengthy telephone call that he did not know what he would do if he saw her with another man, sent her two or three text messages stating that he hoped to reconcile with her, and then left on petitioner's car several mementos that petitioner had given him along with the message that he would “never forget [her], bye.” Notwithstanding the Referee's implicit finding that petitioner was upset by the communications, “her reaction is immaterial in establishing [respondent]'s intent” … . Furthermore, although “[t]he requisite intent may be inferred from the surrounding circumstances” … , the circumstances here failed to establish that respondent acted with the requisite intent. Even crediting the Referee's credibility determinations that respondent engaged in the conduct described above, we conclude that such conduct was comprised of relatively innocuous acts that were insufficient to establish that respondent engaged in a course of conduct with the intent to harass, alarm or annoy petitioner … . Matter of Shephard v Ray, 2016 NY Slip Op 02239, 4th Dept 3-25-16
FAMILY LAW (FAMILY OFFENSE, INTENT TO HARASS NOT DEMONSTRATED)/FAMILY LAW (FAMILY OFFENSE, EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL)/FAMILY OFFENSE (HARASSMENT, INTENT TO HARASS NOT DEMONSTRATED)/HARASSMENT (FAMILY OFFENSE, INTENT TO HARASS NOT DEMONSTRATED)/APPEALS (FAMILY OFFENSE, EXPIRATION OF ORDER OF PROTECTION DID NOT MOOT APPEAL)