Before the Court is J.P.'s ("Respondent") Motion to Dismiss S. D.-P.'s ("Petitioner") Petition for Violation of an Order of Protection issued on June 5, 2007, and Petition for Modification of the same order. Also before the Court are Respondent's Affirmation in Support of the Motion to Dismiss the petitions, the attorney for the child's Affirmation in Opposition to Respondent's Motion to Dismiss the petitions and Petitioner's Domestic Incident Report Supporting Deposition.

Petitioner is represented by Keith H. Richman, Esq. of Richman & Levine, P.C.

Respondent is represented by Adam E. Small, Esq. The appointed attorney for the child, J. P. (DOB: 12/28/2001), is Jill C. Stone, Esq.

Petitioner's Order of Protection ("the Order"), issued on June 5, 2007, requires Respondent to:

[01] Stay away from:

[A] J. P. (DOB: 12/28/2001) until successful completion of alcohol counseling and treatment. Except for supervised visitation, curbside pick up and drop off; [B] E.D. (DOB: 05/08/1990) and R.D. (DOB: 02/10/1994);

[02] Refrain from assault, stalking, harassment, aggravated harassment, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against E. D...., J. P...., R. D...and S. D.-P....

[03] Refrain from any acts that create an unreasonable risk to the health, safety or welfare of E.D. , J. P. and R. D. .

It is further ordered that this Order of Protection shall remain in effect up to and including December 04, 2008.

On April 17, 2008, Petitioner filed a Petition for Violation of an Order of Protection as well as a Petition for Modification of an Order Made by Family Court. Petitioner alleges in both petitions that, since the entry of the Order, there has been a violation of the Order as well as a change in circumstances warranting modification in that Respondent:

repeatedly calls and text messages me of a tumultuous nature. He is exhibiting irrational behavior saying I'm f**king this close.' He deliberately called the police making false and fabricated allegations, saying that our son is in danger.

In the violation petition, Petitioner alleges that Respondent willfully failed to obey the Order. In the modification petition, Petitioner requests that the Order be changed and that an additional provision be added prohibiting Respondent from communicating with Petitioner in any form.

In Respondent's Motion to dismiss the violation petition, Respondent alleges that Petitioner's allegations, even if true, fail to constitute a violation of any of the terms listed in the Order. As noted above, the Order requires Respondent to: (1) stay away from J.P., Petitioner and Respondent's child in common, "until successful completion of alcohol counseling and treatment," and from E. D. and R. D., Petitioner's children from a previous relationship; (2) "[r]efrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offenses" against Petitioner and all of Petitioner's children; and (3) "[r]efrain from any acts that create unreasonable risk to the health, safety or welfare" of all of Petitioner's children. [*3]

When filing a violation petition, the petitioner should "alleg[e] the specific violation" [emphasis added]. 10 NY Prac., New York Family Court Practice � 13:22. Here, the Court notes, Petitioner does not do so in her petition. Rather, Petitioner simply alleges that Respondent violated the Order and then alleges acts committed by Respondent; nowhere in the petition does Petitioner state the specific offense that Respondent allegedly violated by committing such alleged acts. However, Petitioner states in her "Domestic Incident Report Supporting Deposition" attached to her petition, that she "felt harassed and intimidated by Respondent's behavior in violation of the second paragraph of the Order." Therefore, the Court will review both the Petitioner's petition and supporting deposition, applying the alleged facts to the second paragraph of the Order, specifically the offenses of harassment and intimidation. Since Petitioner does not specify which degree of harassment she is alleging, the court will analyze the facts under harassment in both the first and second degree as well as aggravated harassment in both the first and second degree.

It must first be noted that, although Petitioner alleges in the petition that Respondent "repeatedly calls and text messages of a tumultuous nature" and exhibits "irrational behavior," where Petitioner fails to define the terms or describe what the terms mean, such "render[s] the [terms] conclusory rather than factual.'" M.T. v. E.T., 846 NYS2d 877, 880 {18 Misc 3d 418} (2007) (citing People v. Hogan, 664 NYS2d 204 {172 Misc 2d 279} (Crim. Ct. 1997)). As such, the terms cannot be used to "buttress the other allegations in the petition without further specification." M.T. v. E.T., 846 NYS2d at 880. Here, Petitioner fails, in her petition, to support the term repeatedly' with specific dates and times of the alleged calls and text messages, and Petitioner fails to note what, if anything, was said by Respondent in these allegedly repeated communications. However, Petitioner specifies such in her supporting deposition. Petitioner alleges that Respondent "called and text messaged [Petitioner's] cell phone at least twenty five times over the course of three days." Although, in her petition, Petitioner does not define the terms tumultuous' and irrational,' nor does Petitioner give a description as to what types of actions or words might be considered tumultuous' or irrational' in her petition, Petitioner does specify what acts Respondent engaged in throughout her supporting deposition. Therefore, the terms repeatedly,' tumultuous and irrational' may be considered by the Court, supported by the specific examples provided in Petitioner's supporting deposition.

Pursuant to P.L. § 240.25:

A person is guilty of harassment in the first degree when he or she intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury.

A review of the petition and supporting deposition yields allegations which, if true, fall within the framework of harassment in the first degree. Petitioner alleges in her supporting deposition that Respondent called Petitioner's cell phone twenty five times in three days while Petitioner was away on business in India. Petitioner claims that Respondent was at times "crying uncontrollably," and at times claiming that "he had done something terrible that [Petitioner] would find out about soon enough.'" Petitioner also alleges that, during such phone [*4]calls, Respondent claimed he wanted to commit suicide and needed help and also threatened to hurt both Petitioner and Petitioner's eldest son. When Petitioner no longer answered Respondent's calls, Respondent text messaged Petitioner allegedly begging Petitioner to answer his calls. Petitioner further alleges that, after the influx of calls and text messages, Respondent left Petitioner voice mail messages apologizing for his conduct. It may be inferred, for the purpose of reviewing the petition in a light most favorable to the petitioner, that, as demonstrated by his apologies to Petitioner, Respondent acted with the intent required by the statute. For purposes of this motion it may be viewed that, had Respondent not intended to harass Petitioner, he would not have called Petitioner the following day and apologized for his actions. "[T]he term course of conduct' may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." People v. Payton, 612 NYS2d 815, 817 {161 Misc 2d 170} (1994). Respondent's calling and text messaging Petitioner twenty five times in a three-day period, in this instance may constitute a course of conduct because Respondent may have done such with the purpose of obtaining a reaction from Petitioner with threats and cries for help. Additionally, where an individual has engaged in a "prior course of abusive conduct," fear of physical injury is not unreasonable. People v. Henderson, 818 NYS2d 412, 413 {12 Misc 3d 60} (2006). Although Petitioner does not allege prior abusive physical conduct targeted towards Petitioner, the record indicates that Respondent began a physical altercation with Petitioner's son in the past. As Respondent is evidently capable of engaging in such violent behavior and has placed Petitioner in dangerous situations in the past, the Court cannot view Petitioner's fear as unreasonable. Therefore Petitioner, adequately alleges conduct which, if actually occurred could constitute harassment in the first degree, in violation of the Court Oder.

Pursuant to P.L. § 240.26:

A person is guilty of harassment in the second degree when, with the intent to harass, annoy or alarm another person:

1. He or she strikes, shoves, kicks, or otherwise subjects such other person to physical contact, or attempts to threatens to do the same; or

2. He or she follows a person in or about a public place or places; or

3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

A review of the petition and supporting deposition also yields conduct which, if true, falls within the framework of harassment in the second degree. Petitioner states in her supporting deposition that Respondent called the police, claiming that the child in common, J., was in "serious danger," when, in fact, J. was watching a movie at his home with his nanny and half-brother. Although certainly alarming and annoying, such alleged conduct is an isolated event and therefore cannot be considered a course of conduct. However, if the alleged facts are true, Respondent engaged in conduct which could be viewed as harassment in the second degree by calling and text messaging Petitioner. As discussed above, it could be determined that Respondent acted with the requisite intent by calling and text messaging Petitioner twenty five times in three days in a frantic manner. Additionally, such calling and text messaging certainly may constitute a course of conduct, satisfying subsection (3) of the statute. Further, as Petitioner [*5]claims that she was "afraid" and "intimidated" by Respondent's actions, such actions may have alarmed Petitioner. Finally, the Court of Appeals has described the phrase no purpose of legitimate communication' as " the absence of expression of ideas or thoughts other than threats and/or intimidating or coercive utterances." People v. Liberato, 689 NYS2d 363, 365 {180 Misc 2d 199} (1999) (quoting People v. Shack, 86 NYS2d 529, 538 {195 Misc 36} (1995)). In a light most favorable to the Petitioner, Respondent's calls and text messages failed to serve any legitimate purpose in that they were nothing more than threats and terrorization. Thus, for the purposes of this motion, Respondent's actions can be viewed as harassment in the second degree, in violation of the Court Order.

Pursuant to P.L. § 240.31:

A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, he or she:

1. Damages the premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or

2. Commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision three of section 240/30 of this article and has been previously convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision three of section 240.30 or he or she has been previously convicted of the crime of aggravated harassment in the first degree within the preceding ten years; or

3. Etches, paints, draws, upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner of operator of such building or real property; or

4. Sets on fire a cross in public view.

A review of Petitioner's petition and supporting deposition, in a light most favorable to the Petitioner, does not reveal any allegations which fall within the framework of aggravated harassment in the first degree. Nothing in the petition or supporting deposition suggests that Respondent acted with a certain belief or perception regarding Petitioner's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. Further, Petitioner does not allege that Respondent engaged in any act listed in the statute. Thus, Respondent did not engage in aggravated harassment in the first degree and the petition is modified accordingly.

Pursuant to P.L. § 240.30:

A person is guilty of aggravated harassment in the second degree when, with the 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, 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 or written communication, in a manner likely to cause annoyance or alarm; or

2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or

3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or

4. Commits the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.

A review of the petition and supporting deposition, in a light most favorable to the Petitioner, yields allegations which may fall within the framework of aggravated harassment in the second degree. As discussed above, Respondent may have acted with the requisite intent to harass, annoy, threaten or alarm Petitioner in that he allegedly frantically telephoned and text messaged Petitioner twenty five times in three days. Additionally, subsection (2) is potentially satisfied in that, as mentioned above, such alleged calls and text messages did not serve a legitimate purpose, as they may be viewed as nothing more than a means of instilling fear in Petitioner. Therefore, Respondent's behavior may be viewed as harassment in the second degree, in violation of the Order.

The Order also specifically prohibits Respondent from intimidating Petitioner. Intimidation requires making another individual fearful or timid. People v. Jiminez, 525 NYS2d 482, 485 {138 Misc 2d 867} (1988). Mere spoken words are sufficient to intimidate another and, as such, force and violence are not necessary. United States v. Lawrence, 618 F.2d 986, 987 (1980). Here, Petitioner alleges that Respondent repeatedly called and text messaged her while she was in India on business, telling Petitioner that he had done "something terrible" and also that he was "this f**king close." For purposes of this motion, the Court believes that Petitioner was certainly justified in being frightened as she received such calls while far from her family members, with no real means of physically protecting them. Respondent, therefore, may have violated the Order by intimidating Petitioner.

II. Respondent's Motion to Dismiss Modification Petition

In Respondent's Motion to dismiss the modification petition, Respondent claims that Petitioner's allegations, even if true, fail to constitute a change in circumstances sufficient to warrant a modification of the Order.

Jill C. Stone, Esq., the attorney for the child (J.P.), submitted an Affirmation in Opposition for Dismissal of the Petition stating that Respondent's Motion to Dismiss has no [*7]basis in law or fact and the Court should dismiss such. The attorney for the child also claims, on page 2 of her Affirmation, that the facts surrounding the matter show that Respondent is on a mission to make the petitioner's life "filled with Court appearances and Court intervention," which negatively affects the child.

Although Respondent claims that Petitioner's allegations fail to establish a change in circumstances sufficient to warrant a modification of the Order, such is not the proper test to determine whether a modification of a Court order is appropriate in a family offense matter under Article 8 of the Family Court Act. Rather, under F.C.A � 844, the Family Court may, for good cause shown, "reconsider and modify any order issued under paragraph (d) of section eight hundred forty-one" after a hearing. F.C.A. � 841(d) states that the Family Court may issue an order of protection "in accord with section eight hundred forty-two" of the F.C.A., which, in subsection (j), states that the Court may direct a party to observe such conditions "necessary to further the purposes of protection." Here, Petitioner's allegations, if true, indicate that Respondent's constant calls and text messages may disrupt Petitioner and her family and place Petitioner in fear for her own safety as well as that of her children. The Court believes, upon review of Petitioner's allegations, that modifying the Court Order to include an additional provision requiring Respondent to refrain from communicating with Petitioner in any form may be necessary to "provide meaningful protection to the Petitioner and to eradicate the root of the family disturbance." Merola v. Merola, 146 AD2d 611, 612 (2d Dept. 1989). Hence, Petitioner's allegations, taken in a light most favorable to the Petitioner, can be viewed as requiring such modification to further the purposes of protection of Petitioner.

For the above reasons, this Court must dismiss Respondent's Motion to Dismiss Petitioner's Violation Petition, as Petitioner's petition and supporting deposition allege facts that may constitute harassment and intimidation, offenses which are strictly prohibited by the Order. Further, this Court must dismiss Respondent's Motion to Dismiss Petitioner's Modification Petition, as Petitioner's petition and supporting deposition allege facts sufficient to warrant a modification of the Order to further the purposes of protection of Petitioner.

Accordingly, it is

ORDERED that Respondent's Motion to Dismiss Petitioner's Violation Petition is granted in part in that a hearing will be held on September 29, 2008 at 9:00 a.m. for determining if Respondent violated the Order of Protection by committing harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree and intimidation.

ORDERED that Respondent's Motion to Dismiss Petitioner's Modification Petition is granted in part in that a hearing will be held on September 29, 2008 at 9:00 a.m. for determining if Respondent engaged in conduct warranting a modification of the Order of Protection. This constitutes the decision of the Court.

ENTER

________________________

Hon. Conrad D. Singer

Judge of the Family Court [*8]

Dated: July 29, 2008