McKenzie v. Berkovitch

192 A.D.3d 1413

145 N.Y.S.3d 178

In the Matter of Elizabeth J. MCKENZIE, Petitioner,

v.Alex BERKOVITCH, Appellant.

528981

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 5, 2021

Decided and Entered: March 25, 2021

Kalter, Kaplan, Zeiger & Forman, Woodbourne (Terry S. Forman of counsel), for appellant.

Before: Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered March 29, 2019, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 8, finding respondent to have committed a family offense, and issued an order of protection.

In April 2014, petitioner and respondent purchased a farm in Sullivan County as tenants in common. Petitioner lived in the farmhouse and respondent lived on Long Island. Shortly after the property was purchased, an updated alarm system and security cameras were installed in the farmhouse and in the barn area. In July 2018, petitioner commenced this family offense proceeding against respondent alleging that respondent, who she had previously been in an intimate relationship with and had lived with (see Family Ct Act § 812[1][e] ), stalked her and committed harassment in the first or second degree. The allegations were predicated upon, among other things, petitioner's discovery of four cameras in, among other places, her bedroom and bathroom and her contention that she was being recorded without her knowledge. Family Court issued a temporary order of protection directing respondent to, among other things, stay away from petitioner and from the farmhouse. Following a fact-finding hearing, Family Court found that respondent committed the family offense of harassment in the second degree and scheduled a dispositional hearing. Respondent then moved to vacate the order and reopen the hearing for the purpose of introducing new evidence in the form of five affidavits from individuals who were not called as witnesses at the hearing, which he alleged would contradict petitioner's testimony. Family Court denied the motion and, after learning from the parties that no additional evidence would be presented at a dispositional hearing, dispensed with the dispositional hearing and issued a one-year order of protection in favor of petitioner containing certain limitations and conditions regarding respondent's access to the farmhouse. Respondent appeals.

Initially, although the order of protection has expired, we address the merits of the appeal since enduring consequences might flow from the adjudication that respondent has committed a family offense (see Matter of Veronica P. v. Radcliff A., 24 N.Y.3d 668, 671–672, 3 N.Y.S.3d 288, 26 N.E.3d 1143 [2015] ; Matter of Jasna Mina W. v. Waheed S., 170 A.D.3d 572, 572, 97 N.Y.S.3d 49 [2019] ; Matter of Marianna K. v. David K., 145 A.D.3d 1361, 1362, 44 N.Y.S.3d 588 [2016] ).

Turning to Family Court's finding that respondent committed the family offense of harassment in the second degree, respondent argues that the evidence adduced at the hearing does not support such finding. We agree. "To prevail on her family offense petition, petitioner bore the burden of establishing, by a fair preponderance of the evidence, that respondent committed one of the enumerated family offenses set forth in Family Ct Act § 821(1)(a)" ( Matter of Allen v. Emery, 187 A.D.3d 1339, 1340, 133 N.Y.S.3d 662 [2020] [citation omitted]; see Family Ct Act § 832 ; Matter of Marianna K. v. David K., 145 A.D.3d at 1362, 44 N.Y.S.3d 588 ; Matter of Elizabeth X. v. Irving Y., 132 A.D.3d 1100, 1101, 19 N.Y.S.3d 114 [2015] ). "The question of whether a family offense has been committed presents a factual issue to be resolved by Family Court, and Family Court's determinations regarding the credibility of witnesses are accorded great weight" ( Matter of Allen v. Emery, 187 A.D.3d at 1339, 133 N.Y.S.3d 662 [citation omitted]; see Matter of Jasmin NN. v. Jasmin C., 167 A.D.3d 1274, 1276, 91 N.Y.S.3d 543 [2018] ; Matter of Shana SS. v. Jeremy TT., 111 A.D.3d 1090, 1091, 976 N.Y.S.2d 252 [2013], lv denied 22 N.Y.3d 862, 2014 WL 642795 [2014] ).

As pertinent here, "[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" ( Penal Law § 240.26[3] ; see Family Ct Act § 812 ). The term "course of conduct" may reasonably be interpreted to mean "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose" ( Matter of Wandersee v. Pretto, 183 A.D.3d 1245, 1245–1246, 121 N.Y.S.3d 705 [2020] [internal quotation marks and citation omitted]). The petition alleges that petitioner found four sensor recording devices that were unknown to her in the "master bedroom, master bathroom, living room [and] basement" and that she was being recorded within her home without her knowledge. Even according deference to Family Court's credibility determinations (see Matter of Amber JJ. v. Michael KK., 82 A.D.3d 1558, 1560, 920 N.Y.S.2d 448 [2011] ), we find that petitioner failed to establish that respondent recorded or surveilled petitioner, or had specific knowledge of the subject cameras. Therefore, a finding that respondent engaged in the requisite course of conduct to support a finding against him of harassment in the second degree cannot be sustained.

At the fact-finding hearing, a security expert hired by petitioner testified that, in October 2018 — a few days before the hearing — he went to the farmhouse at petitioner's request to conduct a sweep of the...