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Matter of Kimberly O. v. Jahed M. - 2017 NY Slip Op 05684, 152 A.D.3d 441, 58 N.Y.S.3d 367 (App. Div.)

Rule:

A victim’s testimony may establish a course of conduct within Penal Law § 240.26 (3). Moreover, the conduct that supports harassment under Penal Law § 240.26 (2) also constitutes stalking.

Facts:

Kimberly O. testified when she came home in the early morning of August 11, 2013, she was startled to find Jahed M. on the landing of her apartment, at which point he, among other physical acts, charged at her, put his forearm on her throat to try to stop her from breathing, and either pushed her or otherwise caused her to fall on the floor. Her testimony that Jahed M. would follow her as she walked to the train on the way to work in the mornings while screaming insults and obscenities at her supports a finding that Jahed M. committed acts that constitute harassment in the second degree pursuant to Penal Law § 240.26 (2). Kimberly O. also testified that, in addition to this conduct, Jahed M. appeared on her landing on another occasion, banged on her door until she called the police, and, in August, 2015, on yet another occasion, accosted her and her friend while they were walking near her apartment, and, while charging at them, made hostile comments until they were safely inside her building. She testified that Jahed M.'s conduct had "scared me half to death," and that she was "terrified of him." The Family Court found that Jahed M. committed the family offenses of harassment in the second degree and stalking. On or about December 9, 2015, the Family Court granted Kimberly O. a two-year order of protection.

Issue:

Was the Family Court's finding that Jahed M. committed the offenses of harassment in the second degree and stalking supported by a fair preponderance of the evidence?

Answer:

Yes

Conclusion:

The Family Court did not state on the record the facts it deemed essential in granting Kimberly O's petition. The Appellate Division Court stated that remittal was not necessary because the record was sufficient to conduct an independent review of the evidence. Based on that independent review, the Court concluded that the finding that Jahed M. committed the offenses of harassment in the second degree and stalking was supported by a fair preponderance of the evidence. Kimberly O.’s testimony established a course of conduct within Penal Law § 240.26 (3). Moreover, the conduct that supports harassment under Penal Law § 240.26 (2) also constitutes stalking. Accordingly, the Court found no reason to disturb the Family Court's credibility determinations. Jahed M's defense was comprised of only general denials and incoherent statements and was discredited by his own claimed need for an order of protection.

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