MATTER OF BOYD v. BOYD

Upon our review of the record, petitioner demonstrated by a fair preponderance of the evidence (Family Ct Act § 832) that respondent committed the family offense of harassment within the meaning of Family Court Act § 812 (see, Matter of Dutz v Colon, 183 A.D.2d 715). Family Court credited petitioner's testimony in support of her application (see, Matter of Joseph P.B. v Margaret O'D., 161 A.D.2d 545) and the record supports its conclusion that respondent's actions alarmed or annoyed petitioner and had no legitimate purpose (see, Matter of Rogers v Rogers, 161 A.D.2d 766; see also, Penal Law former § 240.25 [5]). In addition, the circumstances surrounding respondent's actions showed that the requisite element of intent existed (see, Matter of Holcomb v Holcomb, 176 A.D.2d 409). As a final matter, the fact that Penal Law former § 240.25 (2) has been found unconstitutional (see, People v Deitze, 75 N.Y.2d 47) does not mandate a different conclusion because Family Court did not base its finding on that section (see, Matter of Holcomb v Holcomb, supra). Respondent's remaining contentions have been considered and rejected for lack of merit.

Weiss, P.J., Levine, Mercure and Mahoney, JJ., concur. Ordered that the order is affirmed, with costs.