IN RE ESTHER

The Referee having properly struck petitioner's testimony as to a course of harassing conduct committed by respondent that had been alleged and adjudicated in a prior proceeding, the evidence was legally insufficient to establish harassment in the second degree under Penal Law § 240.26 (3) ( see People v Wood, 59 NY2d 811, 812). The Referee's remaining findings were supported by a fair preponderance of the evidence.

The Referee properly denied respondent's motion for a mistrial based on the ruling that the evidence of a course of harassing conduct would not be considered in the fact-finding determination, because respondent was not prejudiced by that ruling.