By petition dated January 8, 2008, petitioner alleged respondent committed the acts of aggravated harassment in the second degree, menacing in the second degree and disorderly conduct against Petitioner. Petitioner and respondent are sisters.

The petitioner is represented by Ackerman, Raphan and Sultzer. The respondent is represented by the Law Offices of Robert N. Nelson.

The family offense petition herein states that on or about January 7, 2008 at about 9:00 a.m. respondent committed acts which put petitioner in fear. The petition itself contains no specific acts committed by the respondent, but asserts the respondent has severe psychiatric problems and that her bizarre behavior frightens petitioner. Petitioner also has severe medical conditions, and the stress caused by respondent's behavior worsens her condition. To further support the petition, petitioner annexed copies of two emails purportedly written by respondent to petitioner. One email accuses the petitioner of having a "predatory" sexual relationship with respondent's son and of "picking up" a body from a morgue and getting paid for it. The other email requests petitioner scan a photo of a particular individual, "paint the hair all black" and email it to her. Respondent claims it's for a "psychic investigation" and that she's making a "Greek greeting card" using the picture.

The behavior alleged, if true, seems bizarre. But the question this Court must answer is whether any of it rises to the level of a family offense.

Family Court Act § 812 defines a family offense, as those acts that would constitute:

"disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between [*2]members of the same family or household...

Pursuant to FCA §821 (1)(a), a petition alleging a family offense has occurred must at least allege that the respondent behaved in way that would constitute one of the delineated acts in FCA §812. The petition accuses the respondent of acts which constitute "aggravated harassment in the second degree, menacing in the second degree and disorderly conduct...".

A person commits menacing in the Second Degree, as defined by Penal Law §120.14, when:

1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or 2. He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or 3. He or she commits the crime of menacing in the third degree in violation of that part of a duly served order of protection, or such order which the defendant has actual knowledge of because he or she was present in court when such order was issued, pursuant to article eight of the family court act, section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued.

A person commits disorderly conduct, as defined by Penal Law §240.20 when:

...when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: 1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or 5. He obstructs vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.The Court finds that the allegations in the petition fail to meet any of the elements of menacing in the second degree or disorderly conduct. Menacing requires conduct which places a person in fear of physical injury or worse, and nothing in the petition rises to that level. Disorderly conduct requires some physical activity, accept for subsection (7) which requires the creation of a hazardous or physical offensive condition. This Court does not believe that the two emails in question created a hazardous or physically offensive condition.

Aggravated Harassment in the Second Degree is defined, in pertinent part, by Penal Law §240.30 as:

... with intent to harass, annoy, threaten or alarm another person, he or she: 1. Either (a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, [*3]mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or

The first question to be answered, in connection with Aggravated Harassment in the Second Degree, is whether an email falls within a "mechanical or electronic means". The answer is clearly yes. Emails are generally sent by computers, cell phones and the multiple items that are a combination of both. All these items are either mechanical or electrical and therefore this act can be committed by email. Smith v. Smith, 24 AD3d 822 (3d Dept. 2005), see also People v. Munn, 179 Misc 2d 903 (NY City Crim. Ct. 1999) (threats sent over Internet meet criteria for Aggravated Harassment).

The next question is whether the statements contained in the emails were meant to harass, annoy, threaten or alarm the petitioner. The entirety of the first email states:

"You stand accused of having a sexual predatory relationship with my son [name deleted]. You also picked up a body at a [name deleted] morgue last summer. It was used. You received a fat check for your activities. I am putting you on notice."

It is clear these statements were meant to alarm petitioner. Respondent accuses petitioner of disturbing conduct, including sexual conduct with a relative and, perhaps, stealing a body from a morgue. Unless intended as a joke, any reasonable person would be alarmed by such accusations. In her affidavit, respondent neither denies writing the emails nor that they were meant in jest. Finally, the last statement "I am putting you on notice" is absolutely meant as a threat. A threat of what is not clear.

Looking at all the evidence in light most favorable to the petitioner, the motion to dismiss must be denied. Using the standard for a motion to dismiss, the behavior alleged does meet, at a very basic level, the definition of Aggravated Harassment in the Second Degree as defined by Penal Law §240.30(1)(b) in that, with intent to threaten or alarm the petitioner, respondent initiated a mechanical or electronic communication in written form in a manner that did, in fact, cause annoyance and alarm. Accordingly, it is

ORDERED that the Petitioner's motion to dismiss is denied in its entirety; and it is

ORDERED that the parties are directed to appear for a hearing on June 10, 2008 at 9:00 a.m.This constitutes the decision of the Court.

ENTER

________________________

Hon. Conrad D. Singer

Judge of the Family Court

Dated: April 28, 2008