        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

301
CAF 13-00620
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF WENDY R. FISHER,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JUSTIN C. HOFERT, RESPONDENT-APPELLANT.


ANNA JOST, TONAWANDA, FOR RESPONDENT-APPELLANT.

BRIDGET L. FIELD, ROCHESTER, FOR PETITIONER-RESPONDENT.

JEFFREY D. OSHLAG, ATTORNEY FOR THE CHILD, BATAVIA.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered February 13, 2013 in a proceeding pursuant to
Family Court Act article 8. The order, among other things, directed
respondent to observe certain conditions of behavior.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Respondent father appeals from an order of
protection entered upon a finding that he committed the family offense
of aggravated harassment in the second degree against petitioner
mother (see Penal Law § 240.30 [1] [a]; see also Family Ct Act § 812
[1]). We note at the outset that the order of protection has expired
but, “given the totality of the enduring legal and reputational
consequences of the contested order of protection, respondent’s appeal
from that order is not moot” (Matter of Veronica P. v Radcliff A., 24
NY3d 668, ___).

     The Court of Appeals has determined that Penal Law § 240.30 (1),
which proscribes communications made “in a manner likely to cause
annoyance or alarm,” is unconstitutionally vague and overbroad (see
People v Golb, 23 NY3d 455, 467, rearg denied 24 NY3d 932). Thus, the
statute cannot serve as the basis for a finding that respondent
committed a family offense (see generally Matter of Kakwani v Kakwani,
124 AD3d 658, 659; Matter of Lystra Fatimah N. v Rafael M., 122 AD3d
499, 499). Inasmuch as Family Court concluded that petitioner failed
to establish by a preponderance of the evidence that respondent had
committed either of two other family offenses alleged in the petition,
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                                                          CAF 13-00620

we reverse the order and dismiss the petition.




Entered:   March 20, 2015                        Frances E. Cafarell
                                                 Clerk of the Court
