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To commit stalking in the first degree there is a requirement of injury

In this Criminal action, petitioner initially filed a petition, alleging a family offense. This petition alleges the respondent committed the acts of aggravated harassment in the second degree, stalking in the first degree and disorderly conduct. The entirety of petitioner’s allegations are that respondent: continues to harass, aggravate, intimidate, frighten and stalk Petitioner. The Petitioner discovered the Respondent hiding behind bushes around her home. She was so frightened that the police notified and she was advised to file this petition. The petitioner obtain a Temporary Order of Protection against the respondent for his negative behavior that was dismissed. The petitioner is afraid of the respondent and fears for her life, she is also concerned for the safety, mental and emotional stability of their child. The Respondent abuses alcohol. The Petitioner requested custody of their child. A weapon was not found.

A Nassau County Criminal attorney said that on the date Petitioner appeared before a Judge of this Court, after arrest, petitioner was granted an ex-parte temporary order of protection against the respondent. The order of protection was a “stay away” while under the influence of illegal drugs, alcohol or other intoxicant. Thereafter, the within motion ensued. While respondent does not cite a theory under which the dismissal should occur, the moving papers seem to allege a failure by petitioner to state a cause of action.

The respondent alleges, in his motion, that the allegations contained in the petitioner’s family offense petition, even if true, do not rise to the level of family offenses. The Family Court Act § 812 defines a family offense, as those acts that would constitute: disorderly conduct,

harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household.

Pursuant to FCA §821 (1)(a), a petition containing allegations that a family offense has occurred must at least contain accusations that the respondent behaved in a way that would constitute one of the delineated acts in FCA §812. The petitioner’s petition accuses the respondent of acts which constitute aggravated harassment in the second degree, stalking in the first degree and disorderly conduct.

Aggravated Harassment in the Second Degree is defined by Penal Law §240.30 as: with intent to harass, annoy, threaten or alarm another person, he or she: 1. Either (a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or 2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; 3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sex orientation, regardless of whether the belief or perception is correct; or 4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.

Nothing contained in the subject petition fits into any category of aggravated harassment. The only substantive portion of the allegation is that respondent was hiding behind bushes, on one occasion, and scared petitioner. There is no allegation he attempted to communicate with her through any means, that he was behaving in such a manner as a result of her race, gender or other discriminatory factor or that he has previously been convicted of Harassment in the First Degree.

Stalking in the First Degree is defined by Penal Law §120.60 as when a person: commits the crime stalking in the third degree as defined or stalking in the second degree, in the course and furtherance thereof, he or she: 1. intentionally or recklessly causes physical injury to the victim of such crime; or 2. commits a class A misdemeanor defined in article one hundred thirty of this chapter, or a class E felony defined in section 130.25, 130.40 or 130.85 of this chapter, or a class D felony defined in section 130.30 or 130.45 of this chapter.

To commit stalking in the first degree there is a requirement of injury or that a sex offense has been committed. Petitioner alleges neither.

Disorderly Conduct is defined in Penal Law Section 240.20 as: A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or 5. He obstructs vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Again, nothing in petitioner’s petition meets the criteria of any of the sections of Disorderly Conduct. Though Harassment in the Second Degree is not named in the petition, it appears to be the only section in which respondent’s conduct might fit. Pursuant to Penal Law §240.26 (3), a person is guilty of Harassment in the Second Degree when: “with intent to harass, annoy or alarm another person: 3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.”
The Court is certain that respondent’s actions alarmed petitioner and that they served no legitimate purpose. However, the section requires a “course of conduct” and the petition only alleges one incident on one date. Therefore respondent’s action would not fall within the scope of Harassment in the Second Degree.

Petitioner’s counsel argues that petitioner should not be punished by having her petition dismissed as the result of inartful drafting. However, it is not the language of the petition that makes it defective, but the lack of an allegation or citation of an occurrence that rises to the level of a family offense. In light of the very bare allegations, the Court’s only choice is to dismiss the petition.

ORDERED that the respondent’s motion to dismiss is granted and the petition is dismissed.
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