                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     520701
______________________________________

In the Matter of MAUREEN H.,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
BRYON I.,
                    Appellant.

(And Three Other Related Proceedings.)
______________________________________


Calendar Date:   May 25, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


     Teresa C. Mulliken, Harpersfield, for appellant.

     Larisa Obolensky, Delhi, for respondent.

     Jehed Diamond, Delhi, attorney for the children.

                             __________


McCarthy, J.

      Appeals from two orders of the Family Court of Delaware
County (Becker, J.), entered February 25, 2015, which granted
petitioner's applications, in proceedings pursuant to Family Ct
Act article 6 and 8, for, among other things, an order of
protection and custody of the parties' children.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father), who met in 2007 but never married, are
the parents of three children (born in 2010, 2012 and 2013).
They lived together with their first child for approximately one
year from 2010 to 2011. After they separated, two more children
were born and the children resided with the mother with some
                               -2-                520701

visitation with the father, who has been incarcerated for most of
the children's lives for reasons not established in the record.
In July 2014, the mother filed a family offense petition based
upon, among other things, threatening letters that the father
sent to her from jail. Family Court (Charnetsky, J.) issued a
temporary stay away order of protection in favor of the mother
and children, served on the father on August 14, 2014. Family
Court (Becker, J.) later amended and extended this order and
awarded the mother sole temporary custody and suspended
visitation between the children and the father.1 The mother
thereafter filed a petition seeking custody of the children and
two petitions alleging that the father had violated the temporary
order of protection by sending her letters from jail and calling
her after he was served with that order.

      Following a brief combined hearing on the petitions at
which the parties testified, Family Court found that the father,
who remained incarcerated, had engaged in a course of sending
threatening communications to the mother, thereby committing the
family offense of aggravated harassment in the second degree, and
had violated the temporary order of protection by sending letters
to the mother. The court issued a qualified two-year stay away
permanent order of protection in favor of the mother and
children, which allowed him to communicate with the children only
by mail. The court awarded the mother sole custody of the
children, permitting only mail communication with the children
but no visitation. The court's order conditioned the father's
future right to apply for a modification of the custody and
visitation order on his successful participation in mental health
and anger management treatment. The father now appeals from the
order finding that he committed a family offense and from the
custody order restricting his future right to file a modification
petition.

      "Whether a family offense has been committed is a factual
issue to be resolved by . . . Family Court, and its
determinations regarding the credibility of witnesses are
entitled to great weight on appeal" (Matter of Lynn TT. v Jospeh


    1
        There was no prior order of custody or visitation.
                               -3-                520701

O., 129 AD3d 1129, 1129 [2015] [internal quotation marks and
citations omitted]). Family Court found that the father had
committed the family offense of aggravated harassment in the
second degree (see Penal Law § 240.30), but did not specify a
subsection of the relevant statute upon which it based its
finding. While the subdivision of that statute that appears to
apply – Penal Law § 240.30 (former [1]) – was ruled
unconstitutional by the Court of Appeals before this petition was
filed, neither the parties nor the court addressed this matter
(see People v Golb, 23 NY3d 455, 466-467 [2014], cert denied ___
US ___, 135 S Ct 1009 [2015]).2 Nevertheless, upon the exercise
of our independent review power, we find that the proof adduced
at the hearing sufficiently established, by a preponderance of
the evidence, that the father committed the family offenses of
harassment in the first and second degrees3 (see Family Ct Act
§ 832; Matter of Lynn TT. v Joseph O., 129 AD3d at 1130).

      As relevant herein, harassment in the first degree requires
that an individual "intentionally and repeatedly harasses another
person . . . by engaging in a course of conduct or by repeatedly
committing acts which places such person in reasonable fear of
physical injury" (Penal Law § 240.25). Harassment in the second
degree requires that, "with intent to harass, annoy or alarm
another person . . . [an individual] engages in a course of
conduct or repeatedly commits acts which alarm or seriously annoy
such other person and which serve no legitimate purpose" (Penal
Law § 240.26 [3]; see Matter of Christina Z. v Bishme AA., 132
AD3d 1102, 1103 [2015]). At the hearing, testimony established
that the father sent a series of letters to the mother asserting
that she belonged to him, that he was going to kill her and that
law enforcement would not be able to stop him. Evidence also


     2
        Given that the father does not raise any issue on appeal
with regard to the unconstitutionality or applicability of Penal
Law § 240.30 (former [1]), we deem that issue to have been
abandoned (see Matter of Christian Z. v Bishme AA., 132 AD3d
1102, 1103 n [2015]).
     3
        Notably, the mother had alleged these family offenses in
her petition.
                              -4-                520701

established that the father used correspondence with the children
as an avenue to threaten and demean the mother. Upon review of
the testimony and evidence, we are unpersuaded by the father's
contention that Family Court erred in finding that he had the
requisite intent to harass the mother, as his intent may be
readily inferred from the repeated threatening conduct itself and
from the surrounding circumstances (see Matter of Vanita UU. v
Mahender VV., 130 AD3d 1161, 1166 [2015], lv dismissed and denied
26 NY3d 998 [2015]; Matter of Lynn TT. v Joseph O., 129 AD3d at
1130). While the father admitted sending the letters, offering
exculpatory explanations for doing so, Family Court was
unconvinced, as are we. According deference to those credibility
determinations, we find that the foregoing family offenses were
proven by a preponderance of the evidence (see Matter of Vanita
UU. v Mahender VV., 130 AD3d at 1166; Matter of Lynn TT. v Joseph
O., 129 AD3d at 1131).

      As the parties recognize, however, the conditions placed on
the father's right to seek a modification of the custody and
visitation order are invalid. Family Court did not have the
authority to compel the father to undergo and successfully
complete treatment or therapy as a condition to any future
application for custody or visitation (see Matter of Williams v
O'Toole, 4 AD3d 371, 372 [2004]; Matter of Tucker v Tucker, 249
AD2d 643, 645 [1998]). Finally, the attorney for the children
challenges the qualified two-year order of protection, which
permits only written communication between the father and
children. However, the attorney for the children did not appeal
from any of the orders and, therefore, this contention is not
properly before this Court (see Matter of Gonzalez v Hunter, 137
AD3d 1339, 1341 n [2016], lv dismissed and denied ___ NY3d ___
[June 2, 2016]).

     Peters, P.J., Egan Jr., Lynch and Devine, JJ., concur.
                              -5-                  520701

      ORDERED that the order entered February 25, 2015 granting
petitioner's Family Ct Act article 8 petition is affirmed,
without costs.

      ORDERED that the order entered February 25, 2015 granting
petitioner's Family Ct Act article 6 petition is modified, on the
law, without costs, by reversing so much thereof as conditioned
respondent's future right to apply for modification of said order
and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
