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

229
CAF 15-00199
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF LESLEY SHEPHARD,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ERICK O. RAY, RESPONDENT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HANCOCK ESTABROOK,
LLP, SYRACUSE (JAMES P. YOUNGS OF COUNSEL), PRO BONO APPEALS PROGRAM,
ALBANY, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Monroe County (Paul M.
Riordan, R.), entered December 8, 2014 in a proceeding pursuant to
Family Court Act article 8. The order, among other things, directed
respondent to stay away from petitioner.

     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 appeals from an order of protection
issued upon a finding that he committed a family offense, i.e., that
he engaged in conduct that would constitute the offense of harassment
in the second degree (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 . . . [h]e 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” (id.). The “intent
[element] may be inferred from conduct as well as the surrounding
circumstances” (People v Kelly, 79 AD3d 1642, 1642, lv denied 16 NY3d
832 [internal quotation marks omitted]). We agree with respondent
that the evidence of intent is legally insufficient and, thus,
petitioner did not meet her burden of establishing by a fair
preponderance of the evidence that respondent’s conduct constituted
the alleged offense (see Family Ct Act § 832).

     Initially, we note that “the expiration of the order of
protection does not moot the appeal because the order still imposes
significant enduring consequences upon respondent, who may receive
relief from those consequences upon a favorable appellate decision”
(Matter of Veronica P. v Radcliff A., 24 NY3d 668, 671; see Matter of
Fisher v Hofert, 126 AD3d 1391, 1391).

     The Referee found that respondent committed a family offense,
                                 -2-                           229
                                                         CAF 15-00199

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” (People v
Caulkins, 82 AD3d 1506, 1507). Furthermore, although “[t]he requisite
intent may be inferred from the surrounding circumstances” (Matter of
Shana SS. v Jeremy TT., 111 AD3d 1090, 1091, lv denied 22 NY3d 862;
see Christina KK. v Kathleen LL., 119 AD3d 1000, 1002), 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
(see Matter of Christina MM. v George MM., 103 AD3d 935, 936-937).
Inasmuch as the Referee concluded that petitioner failed to establish
by a fair preponderance of the evidence that respondent had committed
either of two other family offenses alleged in the petition, we
dismiss the petition. Respondent’s remaining contention is moot in
light of our determination.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
