In the Matter of T. M.S. v. K.R.G.
Attorneys and Parties
Brief Summary
Family offense proceeding and order of protection: whether evidence proved harassment in the second degree (Penal Law § 240.26[3] [requires a course of conduct or repeated acts that seriously annoy and serve no legitimate purpose]) and aggravated harassment in the second degree (Penal Law § 240.30[2] [prohibits communications made with intent to harass, annoy, threaten, or alarm]), and whether a single online threat constitutes aggravated harassment under Penal Law § 240.30(1)(b) [criminalizing communication of a threat of physical harm with intent to harass].
Family Court found respondent committed harassment in the second degree and aggravated harassment in the second degree and issued a two-year order of protection.
The findings of harassment in the second degree (Penal Law § 240.26[3]) and aggravated harassment in the second degree under Penal Law § 240.30(2) were vacated; a new finding of aggravated harassment in the second degree under Penal Law § 240.30(1)(b) was entered.
Petitioner failed to prove a course of conduct or repeated acts, the content of the texts/voicemail, or that she told respondent to stop contacting her; and there was no showing the child-protective report lacked a legitimate purpose. However, credited testimony that respondent posted a video stating he had a gun and would shoot petitioner's husband supported a communicated threat under § 240.30(1)(b), and intent to harass could be inferred.
Background
Petitioner sought a family offense order of protection against respondent based on several allegations: (1) respondent threatened to contact the Administration for Children's Services (ACS) to trigger an investigation; (2) in 2021 he posted a video online threatening to kill petitioner's husband if he came to Delaware; and (3) on September 6, 2023, he sent multiple text messages and a voicemail. Family Court credited petitioner's testimony and applied the Family Court Act § 832 [preponderance standard for family offense proceedings].
Lower Court Decision
Family Court found respondent committed harassment in the second degree (Penal Law § 240.26[3]) and aggravated harassment in the second degree (Penal Law § 240.30[2]) and issued a two-year order of protection directing respondent not to contact petitioner and to refrain from committing offenses against her.
Appellate Division Reversal
The Appellate Division modified: it vacated the findings under Penal Law § 240.26(3) and § 240.30(2) due to insufficient proof (no established course of conduct, no content of communications, no notice to cease contact, and no showing that the ACS report lacked legitimate purpose). It entered a new finding of aggravated harassment in the second degree under Penal Law § 240.30(1)(b) based on the 2021 video threat to shoot petitioner's husband, inferring intent to harass from the threat. The two-year order of protection, entered December 16, 2024 and expiring December 15, 2026, was affirmed as helpful in eradicating the root of the family disturbance.
Legal Significance
Clarifies evidentiary thresholds in family offense proceedings: a single online threat can satisfy aggravated harassment under Penal Law § 240.30(1)(b), but harassment in the second degree requires a course of conduct or repeated acts. Establishing aggravated harassment under § 240.30(2) requires proof of the content and circumstances of communications showing intent to harass, annoy, threaten, or alarm, often including notice to cease contact. Orders of protection may be upheld where supported by a properly established family offense, even if the statutory basis is modified on appeal.
Proof of a single, credible online threat to shoot a family member supports aggravated harassment under § 240.30(1)(b), but absent proof of repeated conduct, specific content of communications, or notice to cease contact, findings under § 240.26(3) and § 240.30(2) cannot stand; nonetheless, a two-year order of protection was appropriately affirmed.