In this proceeding brought pursuant to Article 8 of the Family Court Act, the petitioner, A.B., filed a Family Offense Petition on April 7, 2011 which alleges that the respondent, C.D., her husband, committed the following family offenses: Harassment in the first or second degree; Aggravated harassment in the second degree; Menacing in the second or third degree; and Reckless Endangerment approximately between December 2009 and January 2010 and again in October 2010 during conjugal visits at the Elmira Correctional facility where the respondent was incarcerated. The petition alleges numerous attempts by the respondent to communicate with the petitioner, either by mail, telephone, texting, or through third-party contact with the petitioner. The respondent has since been transferred to Southport Correctional Facility [*2]where he is serving a sentence of 28 years to life for the murder of his deceased former wife's husband, and for other convictions. The parties had a child on August 31, 2004, and they were married on January 14, 2006 at the Clinton Correctional Facility. On April 4, 2010, the respondent had divorce papers served on the petitioner.

The petition states that because of his admitted inappropriate behavior toward the petitioner, the prison authorities transferred the respondent to Southport Correctional Facility and placed him in solitary confinement. The petition states that while the phone calls to the petitioner have stopped, the respondent is still contacting her by mail through third parties.

The three purposes of Article 8 of the Family Court Act are to attempt to stop violence, end family disruption and obtain protection from domestic violence (F.C.A.§812.2.(b)). It is clear to this Court that while the respondent is incarcerated for 28 years to life, the threat of a jail sentence for violation of a Family Court order of protection is not a deterrent to the respondent, a convicted murderer. Unless the petitioner decides to continue her conjugal visits with the respondent in the future, there is no purpose to be served, except to allow the respondent time off from solitary confinement, to litigating this petition. Should the petitioner continue to receive threats from the respondent or through third parties, she should contact the prison facility, as she was advised to do in a letter dated January 26, 2011 from the Southport Correctional Facility (attached to petition), which will result in further disciplinary action against the respondent. Where, as here, an "immediate and ongoing danger" does not exist and the petitioner is safely protected from the respondent, the Court is not required to issue an order of protection (see Matter of Opray v Fitzharris, 84 AD3d 1092, 924 NYS2d 421 [2011}; Jose M. V Tatianna T., 30 Misc 3d 948, 914 NYS2d 889 [2011]; Matter of Ashley P., 31 AD3d 767, 819 NYS2d 103 [2006]).

For the reasons stated above, the Court, on its own motion and in the interests of justice, hereby dismisses with prejudice the Family Offense Petition filed April 7, 2011 and hereby vacates the Temporary Order of Protection dated April 7, 2011.

The foregoing constitutes the decision and order of the Court.

July 28, 2011

Riverhead, New York

ENTER,

______________________________________

J.F.C.

Family Court Act § 1113 provides "an appeal must be taken within 30 days of receipt of [*3]the order by the appellant in court, 35 days from the mailing of the order to the appellant by the clerk of the court, or 35 days after service by a party or law guardian upon the appellant, whichever is earliest."

To: Petitioner, Respondent

Counsel

Order was served upon parties/counsel on ___________________,2011 by:__________, Part 7