. [4] The wrong committed by defendants in this case, statutorily defined as employment discrimination, also constitutes tortious conduct under the common-law theory of intentional infliction of emotional harm. (See, e.g., Micari v Mann, 126 Misc 2d 422; Ford v Revlon, Inc., 153 Ariz 38, 734 P2d 580 [Sup Ct 1987].) There is no need, however, to address that overlapping legal claim. Under circumstances such as these, where relevant common-law tort theories are subsumed within the ban on sexual <mask>, a statutorily authorized judicial award of appropriate damages pursuant to Executive Law § 297 (9) will "fully redress the wrong committed.” (Koerner v State of New York, 62 NY2d 442, 449 [1984].)


In considering whether to expand the egregious conduct standard to include a pattern of physical and emotional abuse during a lengthy marriage, the court looked to other States for guidance. In an article entitled The Place of Fault in a Modern Divorce Law (28 Ariz St LJ 773 [Fall 1996]), Professor Ira Mark Ellman noted that courts in approximately 15 States consider marital fault in the distribution of marital property. For example, the article indicates that in Connecticut, the trial courts are provided wide discretion in property allocations and *731alimony decisions, allowing the court to consider “ ‘the causes for the * * * dissolution of the marriage’ ” (id., at 832, quoting Conn Gen Stat Annot §§ 46b-82, 46b-81 [c]; see also, Robinson v Robinson, 187 Conn 70, 444 A2d 234, 235-236 [1982]). In Georgia, fault is relevant to alimony by statute (Ga Code Annot § 19-6-1 [c]), and case law has established that “the conduct of the parties * * * is relevant and admissible” in equitable distribution (Peters v Peters, 248 Ga 490, 491, 283 SE2d 454, 455 [1981]). At least one court in Missouri has held that “the conduct factor becomes important when the conduct of one party to the marriage is such that it throws upon the other party marital burdens beyond the norms to be expected in the marital relationship” (Burtscher v Burtscher, 563 SW2d 526, 527 [Mo Ct App 1978]). Accordingly, in Divine v Divine (752 SW2d 76, 79 [Mo Ct App 1988]), the court held that the husband’s failure to communicate with the wife, as well as his physical abuse, telephone <mask>, and false accusation of her, placed undue stress on the wife during the marriage. Similarly, Professor Ellman noted that a New Hampshire statute, which is apparently applicable to both alimony and property division, allows consideration of fault where it caused the breakdown of the marriage as well as “substantial physical or mental pain and suffering” or an economic loss. (NH Rev Stat Annot § 458:16-a [II] [l] [1], [2].)


Finally, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; Danielson, 9 NY3d 342), we accord great deference to the fact-finder’s opportunity to view the witness, hear her testimony, and observe her demeanor (see People v Lane, 7 NY3d 888, 890 [2006]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon a review of the record, in light of McDonald’s credible testimony, we are satisfied that, as to the remaining counts, the verdict convicting defendant of stalking in the fourth degree and <mask> in the second degree pursuant to Penal Law § 240.26 (2) was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).


Valerie Alexander, J. The issue of exactly what conduct constitutes the violation of aggravated <mask> is one that continues to be raised in mo*704tions and case law. The defendant is accused of having committed a violation of Penal Law § 240.30 (1), aggravated harassment in the second degree. He moves, pursuant to CPL 170.30, 170.35, 100.15 and 100.40, for a dismissal of the charges against him on the grounds that the accusatory instrument is insufficient on its face, defective, and unconstitutional as applied to the defendant. The People oppose the defendant’s motion, but also move, pursuant to CPL 170.35, to amend the information, should the court find it defective.


Smith resigned over winter break. In her exit paperwork, she indicated that she did not get playing time, was not given a valid reason why, and did not want to waste anyone's time. At deposition, she explained that she quit the team rather than face Jennum's discriminatory treatment. She felt Jennum had ruined her love for the game, making her not want to *767return. She never reported the <mask> to university officials because Jennum's treatment worsened when Mackey complained.


Hofstra receives such assistance and in accordance with this regulation Hofstra’s affirmative action office published a pamphlet entitled "Sexual <mask> is Illegal”. The pamphlet indicates in pertinent part: "Complaints about sexual harassment will be responded to promptly and equitably. The right to confidentiality of all members of the academic community will be respected in both informal and formal procedures, insofar as is possible * * * An individual found to be guilty of sexual harassment is subject to disciplinary action for violations of this policy, consistent with existing procedures.”


We agree. Defendants' requested special instruction No. 17 was both duplicative and argumentative. The court's instructions already told the jury that in order to find <mask>, Caldera needed to prove all of the required elements, including: "That the harassing conduct was severe or pervasive." If the court would have further instructed the jury that "[t]he law requires the plaintiff to meet a threshold standard of severity or pervasiveness[,]" the court would have been restating the same concept. Further, the phrase: "The law does not exhibit 'zero tolerance' for offensive words or conduct[,]" is perhaps a logical argument, but it is not a statement of law. Defendants were free to make that argument to the jury.


We are cognizant that the superseding information contained other allegations by the complainant, including that defendant’s actions were in direct violation of a legally issued order of protection. However, we need not reach the issue of whether a communication in violation of an order of protection would establish prima facie the existence of the element of the crime of aggravated <mask> in the second degree consisting of a call “with no purpose of legitimate communication,” since no certified copy of the order of protection was annexed to the information so as to bolster its factual allegations (see People v Casey, 95 NY2d 354, 361-362 [2000]), and a facial examination of the information does not reveal whether the complainant’s allegations were based on direct knowledge of the order of protection or on hearsay. Thus, the nonhearsay requirement of CPL 100.40 (1) (c) remained unsatisfied and a motion was properly brought by defendant seeking dismissal of the aggravated harassment count on this ground (People v Casey, 95 NY2d at 361).


According to the factual account in the accusatory instrument, Monroe County Sheriffs deputies went to defendant’s home at 4:13 p.m., and served the defendant with the order. The defendant “intentionally refused to comply with said order,” and upon being advised that he would be arrested, “became agitated with deputies, and while being taken [in]to custody . . . attempted to pull away from deputies as well as punch a . . . Deputy as he was being taken into custody.” He was brought before Chili Town Court for arraignment that same evening and charged with one count each of a violation of obstructing governmental administration in the second degree (Penal Law § 195.05); resisting arrest (Penal Law § 205.30); and <mask> in the second degree (Penal Law § 240.26 [1]).


On appeal, defendant argues that the charge of <mask> in the second degree should have been dismissed upon the People’s undisputed failure to obtain and produce the videotape which, defendant argues, is Brady material; that the witness’s testimony that defendant’s appearance matched that of the person believed to be a thief unduly prejudiced the defense; and that, in light of the adverse inference charge, the verdict was against the weight of the evidence. We disagree and affirm.


That on or about 2-25-18, in Craighead County, Arkansas, [K.O.] did violate Arkansas Code Annotated § 5-71-208 , with the purpose to harass, annoy, or alarm another person, without good cause, he, in a public place, repeatedly insults, taunts, or challenges another in a manner to provoke a violent response, namely by, grabbing the head of an eleven (11) year old female and forcing her face in his crotch, while telling her he wanted "some head," which is slang for oral sex, thereby committing the offense of <mask> (A-M) against the peace and dignity of the State of Arkansas. A bench trial was held on April 4, 2018. Following the presentation of testimony regarding the factual basis for the State's petition, defense counsel moved for a directed verdict,1 arguing the following:


The parties own adjoining parcels of property on Schroon Lake in the Town of Schroon, Essex County. Following a nonjury trial in 1988, Supreme Court found that plaintiff has a prescriptive easement over a parking area on defendants’ property that can accommodate three cars. The judgment entered on the decision did not specify the extent of the easement other than to note that the parties could enter into an agreement insuring that each had a place to park.1 Instead of heeding Supreme Court’s advice, the parties engaged in a campaign of <mask> against each other that culminated in the commencement by plaintiff of this action seeking a permanent injunction restraining defendants from interfering with her use of the entire easement area. In conjunction with this action, plaintiff moved for a preliminary injunction. Thereafter, she commenced a second action for a permanent injunction and moved for a preliminary injunction enjoining defendants from, inter alia, interfering with her use of a common private road easement. Defendants responded by requesting Supreme Court to reform its judgment to set forth the nature, quality and extent of plaintiff’s easement. Supreme Court denied plaintiff’s motion for a preliminary injunction.2 On reargument, Supreme Court granted the motion to the extent of providing that plaintiff shall have a nonexclusive right to park one registered vehicle in the easement area. Plaintiff appeals from both orders.


She marked the box A which states, “I am an active or retired police officer, probation officer, parole officer, or corrections officer.” In addition, the applicant marked box 4 which provides, “I have reason to believe that I may be subject to unwarranted <mask> upon disclosure.” She then did not provide any facts in the space provided after box 4 that supported the conclusion in statement 4.


“[o]ne-third or more of the tenants occupying a dwelling located in the city of New York . . . may maintain a special proceeding . . . upon the ground that there exists in such dwellings or in any part thereof a lack of heat or of running water or of light or of electricity or of adequate sewage disposal facilities, or any other condition dangerous to life, health or safety, which has existed for five days, or an infestation by rodents, or any combination of such conditions; or course of conduct by the owner or the owner’s agents of <mask>, illegal eviction, continued deprivation of services or other acts dangerous to life, health or safety.” Once one third or more of the tenants/petitioners demonstrate the existence of


Jesse M. Eisen, J. The defendant herein originally was accused of violating subdivision 3 of section 120.05 of the Penal Law, assault in the second degree, a felony. Subsequently he was charged in a superseding information to that of the felony with three *416offenses as follows: count 1 — resisting arrest, section 205.30 of the Penal Law, a misdemeanor^ count 2 — <mask>, subdivision 1 of section 240.25 of the Penal Law, a violation; and count 3 — disorderly conduct, subdivision 3 of section 240.20 of the Penal Law, a violation, and had pleaded not guilty to the various charges. A trial of the issues was held before the court and jury, and the latter returned a verdict of not guilty as to counts 1 and 2 and guilty of cotint 3, a violation.


An award of back pay will be sustained when not “so arbitrary and capricious as to constitute an abuse of discretion,” as such an award “would seem to be a rather normal sanction to be imposed.” (Matter of Mize v State Div. of Human Rights, 33 NY2d 53, 55-56 [1973]; see also Imperial Diner v State Human Rights Appeal Bd., 52 NY2d at 79; Rio Mar Rest, v New York State Div. of Human Rights, 270 AD2d 47, 48 [1st Dept 2000]; *585Matter of Grand Union Co. v Mercado, 263 AD2d 923 [3d Dept 1999]; Young Fu Hsu v New York State Div. of Human Rights, 241 AD2d at 913; Matter of Bronx County Med. Group v Lassen, 233 AD2d 234 [1st Dept 1996]; 121-129 Broadway Realty v New York State Div. of Human Rights, 48 AD2d 975, 976 [3d Dept 1975]; Ryan v New York State Thruway Auth., 889 F Supp 70, 81 [ND NY 1995] [plaintiffs claim that “she was unable to act on . . . offers (of employment) because of . . . post traumatic stress disorder, caused by” sexual <mask> presented jury issue as to back pay].) In a private action for retaliatory discharge because of plaintiffs complaint of sexual harassment, the court upheld a jury award of lost earnings, apparently back pay, finding that the award was warranted and not excessive. (See Gleason v Callanan Indus., 203 AD2d at 753.)


In March of 1992, a Hofstra student, Alison Reutershan (hereinafter Reutershan), lodged a complaint of sexual <mask> with the University’s affirmative action office. Reutershan alleged that on February 3, 1992 Starishevsky, the director of Hofstra’s counseling center, kissed her on the lips at the end of a counseling session. The University’s affirmative action officer, Roland Davis, obtained a written response from Starishevsky, interviewed Reutershan and Starishevsky and concluded that with no witness to the alleged incident, a finding of whether the alleged sexual harassment occurred could not be made. In April of 1992, the affirmative action office considered the case closed.


President and his immediate advisers that the benefit of providing such testimony as an accommodation to a committee’s interests outweighs the potential for <mask> and harm to Executive Branch confidentiality. Such testimony, moreover, may be provided on terms negotiated to focus and limit the scope of the questioning. Because voluntary testimony represents an exercise of presidential autonomy rather than legally required compliance with congressional will, it does not implicate the separation of powers in the same manner, or to anything like the same extent, as compelled testimony.


Generally, the doctrine of judicial immunity extends to those parties acting in a "quasi-judicial” capacity in the course of their performance of court-appointed duties. This privilege is based upon the public policy that expert witnesses must be *845encouraged to perform public services without fear of <mask> or threat of litigation. In analogous situations in which court-appointed psychiatrists or physicians have been sued for their alleged misdiagnoses, the courts have deemed these findings privileged and thereby immune from legal action. (See, Tolisano v Texon, 75 NY2d 732 [1989], revg 144 AD2d 267 [upon the reasons stated in the dissent of Smith, J.]; Deed v Condrell, 150 Misc 2d 279, 281-282 [Sup Ct, Erie County 1991], affd 177 AD2d 1055 [4th Dept 1991]; Schanbarger v Kellogg, 35 AD2d 902, 903 [4th Dept 1970]; Klapper v Guria, 153 Misc 2d 726, 730 [Sup Ct, NY County 1992].)


Before turning to the merits, we begin with a brief overview of res judicata. "The tenets of res judicata prescribe the preclusive effect of a prior final judgment on the merits.... Application of the doctrine of res judicata 'is intended to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from <mask> by vexatious litigation.' [Citation.] It 'rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.' " ( City of Oakland , supra , 224 Cal.App.4th 210, 227-228, 169 Cal.Rptr.3d 51 ; accord, Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897, 123 Cal.Rptr.2d 432, 51 P.3d 297 ; In re Crow (1971) 4 Cal.3d 613, 622-623, 94 Cal.Rptr. 254, 483 P.2d 1206.) "The doctrine has two distinct aspects: claim preclusion and issue preclusion. [Citation.] Claim preclusion, *1326often referred to as res judicata, provides that 'a valid, final judgment on the merits precludes parties or their privies from relitigating the same "cause of action" in a subsequent suit.' " ( City of Oakland , at p. 227, 169 Cal.Rptr.3d 51 ; see DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-825, 189 Cal.Rptr.3d 809, 352 P.3d 378 ( DKN Holdings ) [pointing out the terminological confusion that arises from imprecise use of the umbrella term res judicata and explaining the differences between claim preclusion and issue preclusion].)


Section 1 of chapter 989 of the Laws of 1958 created the Commission of Investigation effective May 1, 1958. The constitutionality of the act itself has already been sustained. (Matter of Commission of Investigation of State of N. Y. v. Lombardozzi, 7 A D 2d 48, affd. 5 N Y 2d 1026, rearg. den. 6 N Y 2d 878, cert. den. sub nom. Castellano v. Commission of Investigation of State of N. Y., 360 U. S. 930.) Moreover, the validity of the subpoenas issued by the commission, valid on their face, has been upheld despite the claim of <mask>. (Matter of Ryan v. Temporary State Comm. of Investigation, 16 A D 2d 1022, affd. 12 N Y 2d 708.) Similarly, subpoenas have not been quashed as against the claim, in advance of the hearing itself, of no personal knowledge of the facts about which the testimony *837was sought. (Matter of Pennock v. Lane, 18 A D 2d 1043.) Finally, where a petitioner claimed his privilege against self incrimination the court held that such claim of privilege may he made only at the time the questions are propounded and that even in the face of such claim of privilege the C'ommissioner would he empowered to grant immunity from prosecution (L. 1958, ch. 989, § 7) and thus compel the petitioner to testify. (Matter of Bonanno v. Ryan, 18 Misc 2d 711, affd. 9 A D 2d 605.)


(c) Fundamental Fairness and Advocacy by Court Yerania has suggested that the language of § 28-311.11 sufficiently made clear the court may issue a <mask> pro- tection order rather than a sexual assault protection order if such is deemed appropriate based on the facts in the petition, affidavit, and evidence presented at a show cause hearing and that thus, Juan’s rights were not violated because he was given a show cause hearing on the matter. But even if Juan had himself understood that § 28-311.11, as amended, granted the court authority to consider a different form of protection order as the result of evidence provided at the show cause hearing, after such hearing had concluded, and even when an ex parte order had already been entered, his due process rights would still have been violated. [5] With its amendments, § 28-311.11(8) grants the court authority to consider an alternative protection order, even after the show cause hearing has concluded and without a request by the petitioner, as long as it makes specific findings. To satisfy the requirement of specific findings, the court must set forth the reasoning for its order, explaining why its conclusion is appropriate; specific findings cannot be satisfied by simply quoting the statutory language. 26 Here, the district court did not make specific findings: Within the harassment protection order entered against Juan, it included a statement of general findings, i.e., that it had jurisdiction of the parties and the sub- ject matter and that “a Harassment Protection Order is more appropriate,” but left blank the portion of the form in which the court is apparently meant to enter its specific findings. Such failure to make specific findings, on its own, is already enough to warrant a reversal of the protection order entered against Juan. See, Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391 (2015); Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007). - 765 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


Two California Supreme Court cases in particular illustrate the principle that employees need not complain with the clarity and precision of lawyers to engage in protected conduct: Miller and Yanowitz. In Miller, the plaintiffs asserted they complained about improper sexual relationships between a supervisor and several of his subordinates, favoritism accorded to those subordinates, and subsequent hostile or harassing treatment by those subordinates after the plaintiffs expressed their complaints. (Miller, supra, 36 Cal.4th at pp. 452, 472-473, 30 Cal.Rptr.3d 797, 115 P.3d 77.) The Court of Appeal concluded that, although the plaintiffs opposed the supervisor's conduct, "they had not expressed opposition to sex discrimination or sexual <mask>. As the court understood the record, '[p]laintiffs were not complaining about sexual harassment but unfairness. This is not protected activity under the FEHA.' " (Id. at p. 474, 30 Cal.Rptr.3d 797, 115 P.3d 77.) The Court of Appeal concluded the defendants were entitled to summary judgment on the plaintiffs' retaliation claim. (Id. at p. 460, 30 Cal.Rptr.3d 797, 115 P.3d 77.) Our Supreme *692Court reversed, holding that although the plaintiffs "may not have recited the specific words 'sexual discrimination' or 'sexual harassment,' the nature of their complaint certainly fell within the general purview of FEHA, especially when we recall that this case is before us on review of a grant of summary judgment." (Id. at p. 475, 30 Cal.Rptr.3d 797, 115 P.3d 77.)


We agree with the court below that the accusatory instrument failed to contain facts supporting the allegation that the defendant engaged in a “course of conduct,” since there is no factual detail as to the manner in which he tried to continue the verbal dispute (see, People v Sullivan, NYLJ, Mar. 12, 1997, at 29, col 5 [App Term, 9th & 10th Jud Dists]). We also note that the use of abusive language would not support a conviction of <mask> (see, People v Dietze, 75 NY2d 47).


Baxter alleges she continued to be promoted, get favorable performance evaluations, and receive salary increases during her tenure at Genworth. At some point in 2011, Baxter's role was expanded to include supervisory responsibilities. Baxter alleges she expressed concern about employee evaluation forms that included race, age, and gender coding. Baxter, an African American woman, opposed and protested Genworth's evaluation protocol based upon her good faith belief that evaluating employees on the basis of age, race, and gender was discriminatory and unlawful. She claims she was admonished and subjected to ongoing <mask> and retaliation as a result of her concerns about the evaluation protocol. In early 2013, Baxter requested and was granted a medical leave of absence under the California Family Rights Act (CFRA) in order to care for her mother. Baxter was scheduled to return to work in the middle of June 2013.


At a jury trial, after the court dismissed the first count of aggravated <mask> in the second degree and denied defendant’s motion for a mistrial on the basis of prosecutorial misconduct on summation, the jury convicted defendant of the four remaining counts of the accusatory instrument. At sentencing, the court denied defendant’s motion, pursuant to CPL 330.30, to set aside the verdict on the ground that the order of Judge Gerald had prevented him from moving to dismiss the accusatory instrument on statutory speedy trial grounds (see CPL 30.30), thereby violating his right to due process.


Third, the plaintiff suffered aggravation, annoyance, <mask>, inconvenience and discomfort because she was forced to move out prior to the expiration of her lease. Such damages are appropriate under a breach of contract (see, e.g., Kupferman v Pakistan Intl. Airlines, 108 Misc 2d 485 [1981] [breach of contract]) and under a breach of warranty of quiet enjoyment (see, I. H. P. Corp. v 210 Cent. Park S. Corp., 16 *492AD2d 461, affd 12 NY2d 329 [1963] [breach of covenant of quiet enjoyment; compensatory and punitive damages awarded]). The court awards plaintiff $250 for her discomfort and aggravation.


Therefore, the new rule of presumption of <mask> which the city urges is purely a nonstringent local administrative extension of the State law, serves only as an obstructive satellite in the newly-created atmosphere of open competition and tends to perpetuate the existence of local control. Further, by obstructing transition, the new rule is inconsistent with the *731State law. The inconsistency of a local law must he subservient to the State statute, since rent control is primarily a matter of State concern. (See City of New York v. State of New York,, 67 Misc 2d 513; F. T. B. Realty Corp. v. Goodman, 300 N. Y. 140, 148.)


The Department also complains that the verdict directors failed to require the jury to find that Mignone had a "good faith" belief that the conduct she opposed violated the MHRA. Under Missouri law, it is unnecessary for a plaintiff claiming retaliation to prove that the conduct they opposed was actually unlawful. Instead, a plaintiff need only have "a reasonable good faith belief that there were grounds for the claim of discrimination or <mask>." Soto , 502 S.W.3d at 48. Here, Instructions No. 12 and No. 13 both required the jury to find that Mignone "reasonably believed" that Fagan's and Nuckols' conduct was wrongful. The instructions did not separately require the jury to find that Mignone believed in the wrongfulness of their actions in "good faith."


However, even where trial courts have made such spe- cific findings, they should be attentive to potential issues of due process. [6] First, we have previously stated that the legal theories supporting either a sexual assault, domestic abuse, or harass- ment protection order are significantly different from one another and each require different offerings of proof. 27 For example, a domestic abuse protection order requires proof of abuse between family or household members. 28 A <mask> protection order requires proof that the petitioner was seriously terrified, threatened, or intimidated, for no legitimate purpose, as a result of a knowing and willful course of conduct by the respondent. 29 And a sexual assault protection order requires proof that the petitioner was subjected to sexual contact or penetration by the respondent without consent. 30 Despite the different offerings of proof required to support entry of any of these types of protection orders, the court, per the amended statute, is allowed to sua sponte change theories after the close of evidence and at a time when the defendant is no longer able to respond or present a defense regarding the newly selected theory, as long as it gives a good reason on the record. 31 Accordingly, the only way that a respondent in this situation could adequately prepare his or her defense is to prepare to defend against all possible theories that may be raised at a show cause hearing. To uphold our longstanding principles of due process, which embody and require a funda- mental fairness to all parties, 32 courts should ensure, prior to See Linda N. v. William N., supra note 11. See §§ 42-903(1) and 42-924 (Cum. Supp. 2020). See Neb. Rev. Stat. §§ 28-311.02 (Reissue 2016) and 28-311.09(1) (Cum. Supp. 2020). See § 28-311.11(1) and (14) (Cum. Supp. 2020). See § 28-311.11 (Supp. 2019). D.W. v. A.G., supra note 15. Accord In re Interest of Spencer O., 277 Neb. 776, 765 N.W.2d 443 (2009). - 766 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports YERANIA O. v. JUAN P. Cite as 310 Neb. 749


FACTUAL AND PROCEDURAL BACKGROUND 1. The Trial a. Thompson’s case Thompson, a trained plumber, worked for the City for 23 years, most recently as a utility service planning supervisor in both the water and power supply divisions. In 2012 Aurora Isabel, a City employee in a different department, sued the City for discrimination, retaliation and sexual <mask> in violation of FEHA, alleging, in part, she was denied a promotion due to discrimination and retaliation by her direct supervisor. In May 2014, while Isabel’s lawsuit was pending, the City transferred her to Thompson’s department. The City’s human resources director told Thompson that Isabel had a pending lawsuit against the City and that, when evaluating her, he should take a “kinder and softer” approach. In September 2015 Thompson wrote a favorable performance evaluation for Isabel, recommending her for a promotion. He shared his performance review with Isabel. Thompson testified at trial he did not know much about Isabel’s pending lawsuit at the time he wrote her performance review and did not fill out the evaluation with that in mind. Thompson’s actions angered his supervisor, Joe Awad, who told Thompson he violated City policy by not obtaining Awad’s approval before recommending a subordinate for a promotion. Thompson had recommended other people for promotion without consequences and was surprised by Awad’s reaction.


On February 6, 2003, plaintiff Thomas Farrugia, a white male lab technologist at North Shore University Hospital, filed a complaint alleging sexual <mask>, sexual discrimination, and national origin discrimination under both the New York State and New York City Human Rights laws. The crux of his complaint is that he has been sexually harassed by a female lab technologist and that the hospital has refused to do anything about it. He also alleges that the majority of lab technologists and supervisors are Asian-Filipino and that they, with the hospital’s consent, have discriminated against him because of his national origin. Given the three-year statute of limitations (CPLR 214 [2]; Executive Law § 297 [9]; Administrative Code of *742City of NY § 8-502 [d]), plaintiffs allegations are presented pre- and post-February 6, 2000.


The People allege that on August 7, 1982 at approximately 6:45 p.m. at the American Airlines terminal (building No. 57) at JFK International Airport, Queens County, the defendant struck the complainant in the face causing injury to his eyes. At the time of the incident, the defendant, a native of the island of Jamaica, was on duty as a security guard, directing cars that approached the terminal to pick up arriving passengers. The complainant was a driver for a limousine service. A dispute arose over whether the complainant could park his limousine in front of the terminal, or whether he was required to park in a designated area for limousines away from the terminal entrance. The complainant exited his vehicle whereupon, he claimed, the defendant struck him and threatened him *1014with a knife (not recovered). Thereafter, complainant entered the terminal and spoke with the defendant’s superiors. The Port Authority police were called to the scene and, at the complainant’s behest, arrested the defendant and charged him with assault in the second degree, criminal possession of a weapon in the fourth degree and menacing. As a result of the defendant asserting his innocence and insisting that the complainant struck him first, the police also arrested the complainant but only charged him with a violation for <mask>. Both received desk appearance tickets.


In the second place, Coates itself strongly suggests an that otherwise-vague law, even one containing a constitutionally perilous word like "annoy," might be saved if the reviewing court can determine "whose sensitivity" the actor must pay attention to in complying with the law.60 And that is exactly the situation we are faced with here. Even if the word "alarm" raises some prima facie vagueness concerns in the context of Section 42.01(a)(8), those concerns are greatly alleviated by the inclusion of an objective reasonable-person standard.61 For these reasons, we conclude that the concerns expressed in Kramer and May about the vagueness of the former <mask> statute do not apply to the disorderly conduct statute.


According to Musel-Winn, plaintiff became upset about his low scores and stated that “[t]his is par for a lab with its staffing, with all the females in the lab” and that he had told her about it before. Musel-Winn responded that she did not recall having any conversations with him about the women in the lab, to which he stated, according to Musel-Winn, for the first time that he was “tired of the sexual <mask> in the laboratory, all the innuendos that go on in the laboratory concerning” him because he was the only male on the evening shift. He also allegedly told her that “that woman, she is always after me. She is always looking at me and laughing. She must like me and I don’t want to deal with her. Tell her to stop.” According to Musel-Winn, plaintiff did not identify the person allegedly harassing him.


The assessment of the propriety of prelitigation discovery lies within the broad discretion of the court. (Thomas v New York City Tr. Police Dept., 91 AD2d 898.) Respondents’ interpretation of the scope of preaction discovery pursuant to CPLR 3102 (c) is too narrow. The provision is not limited to disclosure to aid in bringing an action; it includes preaction disclosure "to preserve information”. Thus this case is distinguishable from cases where preaction disclosure was sought to aid in framing a complaint and the information sought was available to the prospective plaintiff. (See, e.g., Hoffman v Batridge, 155 Misc 2d 862 [1992].) Similarly, this is not a case where plaintiff has requested information concerning other employees or applicants "without limit as to time, nature, or geographical location.” (Neuschatz v Society Generate, 176 AD2d 134 [1st Dept 1991] [denying unlimited discovery request in sexual <mask> suit].)


Claimant alleges that he also complained to Lieutenant Jeff Keenan at Sullivan CF about Maxwell’s “<mask> and retaliation” (defendant’s exhibit A, claim ¶ 14). However, Keenan disregarded his complaints and condoned the conduct of Maxwell and others (defendant’s exhibit A, claim ¶¶ 14, 15). In fact, claimant alleges that Keenan himself made derogatory racial and sexual remarks to both inmates and staff at the facility (defendant’s exhibit A, claim ¶¶ 16, 17). Claimant alleges that he complained to Superintendent James Walsh about Lieutenant Keenan’s conduct but that no disciplinary action was taken. For reasons not detailed in the claim, Maxwell instituted disciplinary action against the claimant resulting in a meeting on September 22, 2004 in which Superintendent Walsh indicated that the charge against the claimant for insubordination could not be established (defendant’s exhibit A, claim ¶ 19). On November 8, 2004 claimant allegedly notified DOCS Deputy Commissioner Lucien Leclaire of the retaliation by Maxwell and Keenan. Claimant alleges that on November 19, 2005 a racist cartoon was posted in a public area of the prison and that on or about December 2, 2005 he was harassed and assaulted by another white correction officer as the result of his “whistle blowing” (defendant’s exhibit A, claim ¶ 25). Allegedly with the encouragement of DOCS supervisors, the other white officer filed a false charge of harassment in the second degree against the claimant, resulting in his suspension from employment. Following his complaints to Governor Pataki and a State Senator, *945the claimant was reinstated to his position as a correction officer. Claimant also alleges that since the filing of his first complaint with his superiors in 2002, he has continuously been denied a promotion. Based on the foregoing, the claimant alleges that “DOCS has a policy and practice of allowing and condoning discriminatory and retaliatory conduct and allowing the existence of a hostile working environment to the detriment of the Complainant” (defendant’s exhibit A, claim ¶ 31).


The case herein is similar to the facts in Be Bour (supra) only in that it involved a concern for narcotics. Unlike Be Bour, however, the stop was not brief, nor devoid of <mask> or intimidation in that it involved removal of defendants from the relatively neutral atmosphere of the bus terminal concourse to the obviously intimidating atmosphere of the Niagara Frontier Police office (see, Florida v Royer, 460 US 491). The questioning was more extensive and involved more than a mere request for identification, in that the agents questioned defendants concerning their residence, their employment, and their citizenship.


In Sassower v Signorelli (99 AD2d 358 [2d Dept 1984]) the Second Department held that in light of plaintiff’s palpable abuse of judicial process, it was well within the judicial discretion of the IAS court to enjoin plaintiff from pursuing additional litigation against defendants and related parties in the absence of judicial approval. The "court will not tolerate the use of the legal system as a tool of <mask>.” (Supra, at 359.)


In opposition, Demeter argued he had been injured by TAXI's alleged violations of the FTSL (and, correspondingly, the UCL) because he would not have paid TAXI's membership fee if he had known TAXI was violating legal requirements and thus was "an illegal company." He acknowledged he had not attempted to cancel his contract with TAXI (i.e., invoked his contractual right to a refund) prior to filing suit, but claimed a full-blown lawsuit was nevertheless a proper means for seeking to void the contract. Demeter further asserted TAXI's "<mask> horse" argument was meritless because TAXI had not presented evidence demonstrating Demeter had knowledge of TAXI's violation before purchasing a membership.


Nor is Penal Law § 120.45 any more difficult to interpret and obey because it lacks a specific intent component. The Legislature’s choice of general over specific intent reflects sound public policy and is consistent with the approach taken by the drafters of the national model anti<mask> statute (National Institute of Justice, Project to Develop a Model Anti-stalking Code For States 43-48 [1993]). By focusing on the behavior of the accused stalker rather than on the stalker’s motivation, Penal Law § 120.45, like the model code, ensures that accused stalkers do not escape criminal liability “by saying that however outrageous [their] conduct might have been, it was not [their] actual intent to cause the requisite fear.” (New Jersey v Cardell, 318 NJ Super 175, 184, 723 A2d 111, 115, certification denied 158 NJ 687, 731 A2d 46; accord, Iowa v Neuzil, 589 NW2d 708, 712 [Iowa]; see also, Greyson, Comment, California’s Antistalking Statute: The Pivotal Role of Intent, 28 Golden Gate U L Rev 221, 242 [1998].) Indeed, Penal Law § 120.45, with its use of the phrase “legitimate purpose” in tandem with a general intent standard, parallels stalking statutes from other jurisdictions that have withstood constitutional vagueness challenges (see, e.g., Bouters v Florida, 659 So 2d 235 [Fla], cert denied 516 US 894; Snowden v Delaware, 677 A2d 33 [Del]; People v White, 536 NW2d 876 [Mich]; cf., Oregon v Norris-Romine, 134 Or App 204, 894 P2d 1221).


never speak publicly about her relationship with Masterson or sue him for any reason. In addition to events occurring while still a Scientology member, each petitioner alleged an invasive Fair Game campaign occurring entirely after she had left the church.6 Bixler alleged that she formally terminated her relationship with the Church in October 2016, then reported Masterson to the police. It was only after her report that she was declared a Suppressive Person and she and her husband were subjected to the Fair Game campaign. Jane Doe #1 learned in June 2005 that she had been declared a Suppressive Person and was no longer permitted to engage in religious services at the Church. More than a decade later (after she asked the LAPD to reopen its investigation into Masterson), the Church commenced its Fair Game campaign against her. Jane Doe #2 ceased practicing Scientology entirely in 2004. In 2017, she reported Masterson’s assault to the LAPD, at which point the Fair Game harassment began. As to whether the conduct that occurred while petitioners were still Church members was actionable, or merely background, the complaint was not entirely clear. Plaintiffs included conspiracy allegations, which alleged Scientology “engaged in wrongful conduct, including but not limited to information suppression, coercion, deception, <mask>, harassment, surveillance, threats, vandalism, theft, and/or fraud.” “Information suppression” and “coercion” could include


Following the hearing, the court filled out and signed a pre-printed Order of Protection form. The top right-hand corner of the form contains five options: domestic violence order, amended domestic violence order, interpersonal protective order, and amended interpersonal protective order. The court checked the box labeled "Domestic Violence Order." On the second page of the form, the court checked a box indicating that James was to be restrained from any contact or communication with Janet. On the next line the court handwrote the number "500" in the blank indicating that James should stay at least 500 feet away from Janet at all times. However, the court failed to check the box indicating that this section was applicable. On the section of the form stating "in order to assist in the eliminating future acts of domestic violence and abuse, dating violence and abuse, <mask> or sexual assault" the court stamped the following in black ink: "RESPONDENT IS FURTHER ORDERED NOT TO POSSESS, PURCHASE OBTAIN OR ATTEMPT TO POSSESS, PURCHASE OR OBTAIN A FIREARM DURING THE DURATION OF THIS ORDER." Once again, however, the court failed to check the box indicating this section was applicable.


the violence.” (§ 6220.)7 To effectuate this purpose, trial courts may issue a restraining order based on “reasonable proof of a past act or acts of abuse.” (§ 6300, subd. (a); In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225 (Marriage of Davila).) “The DVPA requires a showing of past abuse by a preponderance of the evidence.” (Marriage of Davila, supra, 29 Cal.App.5th at p. 226.) “Abuse is not limited to the actual infliction of physical injury or assault.” (§ 6203, subd. (b).) Rather, “ ‘abuse’ ” includes causing or attempting to cause bodily injury (id., subd. (a)(1)), “plac[ing] a person in reasonable apprehension of imminent serious bodily injury” (id., subd. (a)(3)), and behavior such as “<mask>, threatening, . . . harassing, . . . contacting, either directly or indirectly, . . . or disturbing the peace of the other party” (§ 6320, subd. (a); see § 6203, subd. (a)(4)). “ ‘[T]he plain meaning of the phrase “disturbing the peace of the other party” in section 6320 may be


Thus, as of the time of this decision and order the following charges Eire pending against the defendant: Attempted assault in the third degree as charged by an information affirmed on September 28, 2008; <mask> in the third degree as charged by an information affirmed on September 28, 2008; resisting arrest as cheirged in an information affirmed on September 28, 2008; reckless endangerment of property as charged in an information affirmed on September 28, 2008; no bell or signal device on bicycle as charged in simplified information affirmed on July 16, 2008; no/inadequate lights on bicycle as charged in simplified information affirmed on July 16, 2008; no reflector wheel/bicycle as charged in simplified information affirmed on July 16, 2008; improper or unsafe turn signal as charged in simplified information affirmed on July 16, 2008; and failure to keep right as charged in simplified information affirmed on July 16, 2008.


On May 9, 2013, a hearing was commenced before a Referee. Although informed of the hearing, respondent notified the Committee by email that he would not appear. In response, the Committee advised respondent that the hearing would proceed and that, upon his failure to appear, the charges against him would be deemed admitted pursuant to 22 NYCRR 605.12 (c). The Committee submitted documentary evidence at the hearing. In light of respondent’s failure to appear, the Referee deemed the charges admitted. The Committee argued before the Referee that respondent should be disbarred. By a report dated June 28, 2013, the Referee recommended disbarment citing respondent’s aforementioned failure to cooperate with the Committee as well as his egregious conduct consisting of his “mailing of box cutters, obscene email and voicemail messages, and the fear he put into numerous judges and lawyers due to his <mask> and harassment of them.”


The court initially expressed some concern regarding Juror No. 5's impartiality, finding it "unusual" that a juror would be reading a book on <mask> during the trial. After questioning the juror, however, the court concluded that her exposure to The Gift of Fear did not affect her ability to be fair, impartial, and objective. In reaching that conclusion, the court found that Juror No. 5 had been given the book by her chiropractor rather than having sought out the material herself, and that she had read the book only briefly before seeing a reference to the prosecutor and setting it aside. These findings, which are based on the court's assessment of the credibility of Juror No. 5's responses to questions posed by the court and the parties, are supported by substantial evidence.


Defendant was charged with the crimes of murder, <mask>, and arson. In connection with the stalking count, the trial court permitted the prosecution to elicit from several witnesses Kerr's out-of-court statements regarding her fear of defendant. (See former § 646.9, subd. (e), as amended by Stats. 1998, ch. 825, § 4, p. 5162; id ., ch. 826, § 1, p. 5166; CALJIC No. 9.16.1 (1999 rev.) (6th ed. 1996) [the crime of stalking under former § 646.9 requires a showing that the harassing conduct directed at a specific person actually caused that person "substantial emotional distress"]; cf. People v. Ewing (1999) 76 Cal.App.4th 199, 211-212, 90 Cal.Rptr.2d 177 [evidence that the victim experienced sleepless nights and had joined a support group for battered women was insufficient to show that she suffered substantial emotional distress for purposes of establishing the stalking charge].)


See, e.g., Tex. Fam. Code § 85.025(a) (generally providing for two-year duration of protective order due to finding of family violence, except in specified situations in which the judge determines that a longer period is needed and the judge makes specific required findings in support of that determination); but see Tex. Code Crim. Proc. art. 7A.07 (imposing no limitation on duration of protective order in cases involving sexual assault or abuse, <mask>, or trafficking).


(a) A person commits the offense of internet <mask> of a child if the person being twenty-one (21) years of age or older knowingly uses a computer online service, internet service, local internet bulletin board service, or any means of electronic communication to.... Ark. Code Ann. § 5-27-306(a) (Supp. 2017) (emphasis added). Duren contends that the amendment is significant because it demonstrates that the prior statute, which applies to him, was limited to internet communications and did not criminalize other types of electronic communication like texting that takes place over the phone line. While the amendment does broaden the reach of the statute beyond the use of the internet, it lacks the significance claimed by Duren because substantial evidence supports the jury's conclusion that Duren used the internet when he exchanged photographs with "B.T."


Plaintiff has proved by a fair preponderance of the credible evidence both of the elements of <mask> in the fourth degree. She has established that defendant, by deliberately moving in close proximity to her vacation home the moment the order of protection expired and continuing to rent there, has engaged in a course of conduct for no legitimate purpose — “meaning] the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten.” (People v Stuart, 100 NY2d at 428.) She has also demonstrated that defend*1121ant has done this with the knowledge that he has caused her and continues to cause her the type of fear required under Penal Law § 120.45. Accordingly, the court finds that defendant Jay Weiner has committed the family offense of stalking in the fourth degree.


2 There were two felony counts of <mask>. Count 1 alleged that between April 7 through April 23, 2019, defendant “did willfully, maliciously, and repeatedly follow and did willfully and maliciously harass G.K., and made a credible threat with the intent that she be placed in reasonable fear for her safety and the safety of her immediate family,” and that defendant was “subject to a temporary restraining order, injunction and other court order prohibiting the above described behavior against G.K.” Count 2 alleged the same conduct, but for the earlier period between March 1, 2019 and April 6, 2019, and when there was no court order. 3 People v. Harvey (1979) 25 Cal.3d 754.


Conviction of an offense that another jurisdiction treats with severe potential penalties may satisfy Public Officers Law § 30 (1) (e) even if the violation would be a minor offense or even no criminal offense at all under New York law. (Graham v Coughlin, 72 NY2d at 1015; Quaranta v Jacobson, 167 Misc 2d at 1036.) Therefore the court must consider not only how New York classifies a similar offense, but how severely Pennsylvania punishes the offense. (Quaranta v Jacobson, 167 Misc 2d at 1038.) Just as in evaluating New York’s most similar offense for purposes of Public Officers Law § 30 (1) (e), the court considers the elements of the offense, not the circumstances of petitioner’s commission, so, too, in evaluating whether the punishment fits New York’s definition of a felony, the court considers the maximum penalty that may be imposed, not the sentence actually imposed on petitioner. (Penal Law § 10.00 [5]; Feola v Carroll, 10 NY3d at 573; Duffy v Ward, 81 NY2d at 130.) Penal Law § 10.00 (5) defines a felony as an offense potentially punishable by more than one year in prison. Although a first offense of <mask>, absent aggravating factors, constitutes only a misdemeanor of the first degree under Pennsylvania law (18 Pa Cons Stat Ann § 2709.1 [c]), the offense is punishable by up to five years in prison. (18 Pa Cons Stat Ann § 106 [b] [6]; § 1104 [1].) Stalking under Pennsylvania law thus satisfies New York’s definition of a felony.


In the RVR, female Correctional Officer M.M. reported: "On Friday January 31, 2014 at approximately 0713 hours while performing my duties as housing unit 15 control officer, I released all the inmates from the unit for breakfast. I observed [appellant] remaining in the unit standing at the urinal behind the podium continuously staring at me. I gave [appellant] an order to exit the unit and he complied. As he entered the sally port he completely stopped directly beneath me looking up at *348my crotch through the control booth window. He proceeded to breakfast. [¶] At approximately 0755 hours while releasing morning medication I opened cells 201 through 209. [Appellant] exited cell 204 completely naked. Utilizing his right hand holding his erect penis stroking it back and forth while directly looking at me. I contacted Officer Strong to respond to the area. Officer Strong observed [appellant] masturbating and gave him a direct order to stop and step inside his assigned cell and I closed the cell door. I notified Sergeant Wall of the incident and yard staff cuffed and escorted [appellant] out of the unit. I fear for my safety with him on the yard, due to his <mask> behavior. His progression from stalking to masturbating directly at me leads me to fear he may take it further. I was offered EAP [Employee Assistance Program] which I declined."


1. The Court finds that it has subject matter jurisdiction, as well as jurisdiction over both parties, [Bethany] and [Jared], involving the State’s Application for Protective Order pursuant to Article 7A of the Texas Code of Criminal Procedure. The Court finds that [Jared] did not engage in acts of sexual assault, <mask>, or trafficking and poses no threat in the foreseeable future to [Bethany].


Regarding the charge of <mask>, the People assert that two incidents can establish a course of conduct sufficient to withstand a motion to dismiss. The People further argue that defendant’s conduct was of such a nature that it reasonably put the complainant in fear of losing her job. In addition, the People assert that irrespective of the fact that the post office is open to the public and that the defendant may have complained about Ms. Varma, such “does not negate defendant’s intentions to go there with the sole intent to stalk Ms. Varma” (Brody affirmation 111113, 14).


Accepting the court's credibility determinations and factual findings, and in light of the circumstances surrounding the misconduct and the record as a whole, we conclude there is no substantial likelihood *417that Juror No. 5 was actually biased against defendant. Juror No. 5's exposure to the out-of-court information occurred because her chiropractor had loaned her The Gift of Fear, a book her chiropractor had enthusiastically touted as something that "all women should read." That Juror No. 5 did not herself seek out information on <mask> belies any substantial probability of actual bias. We observe furthermore that Juror No. 5's exposure to the out-of-court information was brief and unremarkable, which further dispels any inference of bias. According to the juror, the 17 pages she read before putting down the book conveyed information that she already knew. Finally, there is nothing in the record suggesting that Juror No. 5 interjected any of the book's contents, or its references to the prosecutor, into her deliberations with follow jurors, which also tends to negate the inference of bias. Notably, Juror No. 5 expressly **552denied having done so. (See In re Carpenter, supra, 9 Cal.4th at p. 657, 38 Cal.Rptr.2d 665, 889 P.2d 985 [that the juror had not revealed the forbidden out-of-court information *100to any other juror tends to negate the inference that the juror was biased because one would expect a biased juror to tell the other jurors what she had learned].)


The court stated, "I'm going to restrain each party from harassing or following or <mask>, or any of those things to the other party, and I'm going to issue a restraining order against communicating with the other party.... [¶] ... [¶] So, I'm going to eliminate their contact.... I'm going to order each person to stay 100 yards away from the other person...."


person who is or has been in a social relationship of a romantic or inti- mate nature with the abuser,” and it specifies that “[t]he existence of such a relationship is based on a consideration of” “the length of the relation- ship,” “the type of relationship,” and “the frequency of interaction be- tween the persons involved in the relationship.” 8 As we have explained, materially identical language supports the conclusion that an “intimate partner” may be the same sex as the abuser, and we see no reason for reaching a different conclusion as to this language when it defines the term “dating partner.” In both cases, the relevant definitions contained in section 2266 state that the terms “intimate partner” and “dating partner” in section 2261 refer to a “person” with a particular sort of relationship to the abuser. They do not further suggest any limitation based on the sex of either the abuser or the victim or any requirement that the abuser and the victim not be the same sex. The limited legislative history that bears on the pertinent VAWA provi- sions is consistent with our reading of the terms “intimate partner” and “dating partner.” The 2006 VAWA amendments added the definition of “dating partner” and amended the definition of “spouse or intimate part- ner” for purposes of VAWA’s criminal provisions. Those amendments also sought to strengthen the health care system’s response to domestic violence, dating violence, sexual assault, and <mask>. A finding pertain- ing to these latter changes discusses the “health-related costs of intimate partner violence” and notes that “[t]hirty-seven percent of all women who sought care in hospital emergency rooms for violence-related injuries were injured by a current or former spouse, boyfriend, or girlfriend.” Pub. L. No. 109-162, § 501(1)–(2), 119 Stat. at 3023 (emphases added). This finding’s reference to “intimate partner” violence between women and their girlfriends comports with our conclusion that two individuals


“[a] person is guilty of <mask> in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct: “1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted.” The Court of Appeals has emphasized that the statutory requirement of intent for this offense was appropriately limited to an intent to engage in a course of conduct targeted at a specific person, and did not include an additional intent to cause a specific result, such as fear (see People v Stuart, 100 NY2d 412, 427 [2003]). The statute thus focuses on what the *7offenders do, not what they mean by it or what they intend as their ultimate goal. Furthermore, the sheer volume of unwanted attempted communications can establish the “no legitimate purpose” element of the offense (see People v Sonee, 25 Misc 3d 128[A], 2009 NY Slip Op 52076[U] [App Term, 1st Dept 2009]). Therefore, despite the fact that defendant contends that she had a legitimate purpose in pursuing McDonald in an effort to get her job back, the “no legitimate purpose” element can be inferred from the frequency of the alleged course of conduct. Moreover, although defendant was not alleged to have made any verbal threats, the sheer volume of her attempts at communicating with McDonald make defendant’s course of conduct one which was likely to have caused reasonable fear of material harm to McDonald’s safety (see People v Wong, 3 Misc 3d 274 [Crim Ct, NY County 2004]). Thus, as to the count of stalking in the fourth degree, the information was sufficient on its face, as it contained nonhearsay factual allegations of an evidentiary nature which established, if true, every element of Penal Law § 120.45 (1) and defendant’s commission thereof (see CPL 100.15 [3]; 100.40 [1]). Additionally, as to the legal sufficiency of the evidence presented at trial, when viewing the facts in a light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that there is a valid line of reasoning and permissible inferences from which a rational trier of fact could have determined that defendant’s guilt of stalking in the fourth degree was proved beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]).


The first prong of Fariss' point challenges the sufficiency of the pro se petition requesting an order of protection. She contends the petition was inadequate because, apart from the checked boxes on the pre-printed form, it contained only "bare" factual allegations which did not constitute either <mask> or harassment under the Act. This issue is not preserved for appellate review because the record before us, consisting only of the legal file, does not demonstrate that this issue was presented to and decided by the trial court. See Rule 78.09; Brown v. Brown , 423 S.W.3d 784, 787-88 (Mo. banc 2014) ; Stander v. Szabados , 407 S.W.3d 73, 81 (Mo. App. 2013) (due to the amendment of Rule 55.27(g), the defense of failure to state a claim is waived when not presented to the trial court and cannot be raised for the first time on appeal).


“A person is guilty of <mask> in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct: “1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted.” Thus, in order to establish that defendant has committed the crime of stalking in the fourth degree, there are two things that must be proved. The first is that his presence in the Hideout is without legitimate purpose. The second is that he knows or should know that his presence there is likely to cause plaintiff fear for her physical health, safety or property.


The defendants’ second argument appears to be that the definition of a hate crime as set forth in Penal Law § 485.05 (1) (a) is unconstitutionally vague unless it is read to require that the crimes against Sandy were actually motivated by bias, prejudice or hate. The law is well settled, however, that a court examining a statute on vagueness grounds is required to determine whether the existing statutory language sufficiently informs persons of ordinary intelligence of the forbidden conduct and provides law enforcement officials with clear standards for enforcement. (See People v Stuart, 100 NY2d at 420-421.) If the statute as drafted accomplishes these goals then the constitutional challenge must be dismissed notwithstanding an assertion that the inclusion of an additional element in the statute would have made it easier for members of the public and law enforcement officials to understand the conduct prohibited by the statute. (See People v Stuart, 100 NY2d at 426-427 [rejecting claim that anti<mask> statute was unconstitutionally vague as applied because it did not require the People to prove that an offender “intend(ed) a specific result, such as fear or harm” because the statute, as written, provided citizens with clear notice of the prohibited conduct]; People v Nelson, 69 NY2d at *294307-308 [rejecting claim that jostling statute was unconstitutionally vague as applied because it did not require the People to prove larcenous intent since the statute as written provided innocent citizens with clear notice of the prohibited conduct].)


Appellant's conviction of felony indecent exposure, however, does not encompass the alleged "<mask> behavior" he exhibited prior to his commission of the offense. As we have previously recognized, "other crimes the prisoner may have committed in perpetrating the commitment offense are irrelevant to the determination whether that offense meets the criteria for MDO treatment." ( People v. Kortesmaki (2007) 156 Cal.App.4th 922, 926-927, 67 Cal.Rptr.3d 706, citing People v. Green (2006) 142 Cal.App.4th 907, 913, 48 Cal.Rptr.3d 464.)


On May 9, 2013, a hearing was commenced before a Referee. Although informed of the hearing, respondent notified the Committee by email that he would not appear. In response, the Committee advised respondent that the hearing would proceed and that, upon his failure to appear, the charges against him would be deemed admitted pursuant to 22 NYCRR 605.12 (c). The Committee submitted documentary evidence at the hearing. In light of respondent’s failure to appear, the Referee deemed the charges admitted. The Committee argued before the Referee that respondent should be disbarred. By a report dated June 28, 2013, the Referee recommended disbarment citing respondent’s aforementioned failure to cooperate with the Committee as well as his egregious conduct consisting of his “mailing of box cutters, obscene email and voicemail messages, and the fear he put into numerous judges and lawyers due to his <mask> and harassment of them.”


Only one conclusion can be drawn from the uncontested facts under the correct legal standards: Appellant has established a prima facie case of contempt and the burden shifted to Respondent to prove that he was financially unable to pay and that the inability was not a consequence of his own intentional and contumacious conduct. Respondent's only effort to meet this burden was getting Appellant to agree on cross-examination that he could not send her money while he was in custody awaiting resolution of the <mask> charges beginning in August 2016. But this was a month after the order of protection expired, and being in jail for those few months only explains--at best--his physical inability to personally put a check in the mail. Respondent has not produced any evidence to demonstrate that he was financially unable to make payments during those few months he was in jail, much less *422during the three previous years the order of protection was in effect. In any case, the inability to send Appellant money while in custody was a direct consequence of his admitted act of stalking her and cannot excuse Respondent's noncompliance with his financial obligation to her under the order of protection. Respondent wholly failed to rebut Appellant's prima facie case of contempt.


Any person who has been subject to domestic violence by a present or former family or household member, or who has been the victim of <mask> or sexual assault, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence, stalking, or sexual assault by the respondent. A family or household member includes persons, such as Petitioner and Respondent, who have resided together in the past. Section 455.010(7). Accordingly, Petitioner filed a verified petition alleging she had been subject to domestic violence. Section 455.010(5) states that domestic violence is "abuse or stalking committed by a family or household member, as such terms are defined in this section." Section 455.010(1)(a)-(f) provides that "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person: assault, battery, coercion, harassment, sexual assault and unlawful imprisonment.


The elements of the offense to which petitioner pleaded guilty (18 Pa Cons Stat Ann § 2709.1 [a]), most closely equate to the elements of <mask> in the third degree under New York law, which New York also classifies as a misdemeanor. (Penal Law § 120.50.) Although stalking in the second and first degrees are felonies under New York law, these offenses require the use of weapons, an age disparity, previous convictions, or the infliction of actual injuries, none of which is an element of the Pennsylvania statute. (Penal Law §§ 120.55, 120.60.)


Appellant claims the trial court found she must show Respondent caused Child to subjectively fear physical harm and that a reasonable person under the same circumstances also would have feared physical *516harm. Appellant asserts that in support, the trial court cited M.D.L. v. S.C.E., 391 S.W.3d 525 (Mo. App. E.D. 2013), an action under the Adult Abuse Act (AAA), Sections 455.010 through 455.090. Appellant argues actions under the AAA generally have no application to actions brought under the CPOA. Appellant maintains a full order of protection under the CPOA is appropriate when a child has been subject to <mask> by any person, Section 455.505, and " 'stalking' is when any person purposely engages in an unwanted course of conduct that causes alarm to another person, or a person who resides together in the same household with the person seeking the order of protection when it is reasonable in that person's situation to have been alarmed by the conduct." Section 455.010(14) (emphasis added). Appellant maintains the reason the CPOA allows for orders to be entered to protect a child under the age of seventeen and does not require alarm to the child is because many children of tender years are not capable of recognizing a dangerous situation or of giving testimony concerning it. Therefore, Appellant concludes, to require a subjective fear of the child as an essential element would preclude relief in some cases where it is most appropriate.


Defendant pleaded no contest to <mask> his ex-wife in violation of Penal Code section 646.9, subdivision (a). As part of a negotiated disposition, the District Attorney agreed to dismiss several misdemeanor charges involving a trespass on the Apple campus in Cupertino in exchange for defendant's no contest plea to the stalking charge. Defendant was granted probation for a period of five years. One of the conditions of probation imposed by *411the trial court is that defendant "stay away from the Apple campus."1 *1244II. DISCUSSION


“A person is guilty of <mask> in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct: “2. causes material harm to the mental or emotional *872health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct.” Again, the defendant is accused of contacting the complainant’s family and friends as listed on her Facebook account. The defendant’s motion for insufficiency argues that the factual portion of the information and the supporting deposition fails to meet the requirements of CPL 100.40 (1) (c) which requires that the “[n] on-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.” The defendant argues that the people fail to set out four nonhearsay allegations, which if true, would establish them as elements of the offense of stalking in the fourth degree, i.e, lack of legitimate purpose, course of conduct, material harm and a previous demand to cease the specific conduct.


Although, at first blush, there may seem to be some tension between the rule of construction that each word be accorded meaning if reasonably possible and the rule that words in a list likely share some commonality in meaning, the rules actually complement each other.12 Ordinarily, each word in a list will have a different, a broader, or a narrower meaning than other words in the list, but all the words in a list are likely to share some commonality in meaning. Which of these two rules has the most effect on a statutory construction analysis will depend on the context, which can be illustrated by comparing Long v. State to the present case. In the prior <mask> statute that we addressed in Long , the term "harass" was contained in a series with a number of other terms of varying emotional intensity: "harass, annoy, alarm, abuse, torment, or embarrass."13 What these words have in common is that they denote unwelcome emotional distress. Given the range of emotional distress *319from "annoy" to "torment," one could not conclude from the list itself that any of the words denote a similar level of emotional intensity-to the contrary, they seem to denote varying levels of emotional intensity. But in the present statute, the pairing of "harassing" solely with "threatening" suggests that, while words conveyed in a "harassing manner" need not contain a threat, those words would convey an emotional impact similar to a threat, which would be a relatively high emotional intensity level-substantial emotional distress.14


*409(See id. at p. 885, 55 Cal.Rptr.3d 716, 153 P.3d 282 [appellate claim that the language of a probation *747condition is unconstitutionally vague or facially overbroad "does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts"].) When the electronic search conditions are viewed in this light, they may be understood as not being facially overbroad. Although it is readily apparent that application of this search condition could be constitutionally overbroad as applied to certain probationers in some circumstances, it is equally apparent that such a search condition may be entirely appropriate, and constitutional, in other circumstances. J.S. essentially concedes this point by listing circumstances in which he believes application of such conditions would be constitutionally sound-i.e., where the "defendant has a history of storing illegal content on his computer, utilizing electronic means to embezzle money, <mask>, hacking, or otherwise perpetrating an offense that is related to usage of a computer." We agree that certain probationers may require more intensive supervision and monitoring-in particular, with respect to their use of computers and other electronic and recordable media-based on the specific facts of the case. For this reason, we reject J.S.'s constitutional challenge to the electronic search conditions to the extent that he contends they are facially overbroad.


Defendant entered a plea of no contest to one count of felony <mask>, with a maximum sentence of four years in state prison.2 The remaining counts were dismissed with a Harvey3 waiver, and no promises were made as to the sentence. Sentencing was initially scheduled for February 3, 2020, but was continued multiple times, first due to defense counsel’s motion to withdraw (which was granted) and, later, at the requests of new defense counsel. Defendant was eventually sentenced on February 26, 2021 to the midterm of three years in state prison. The Underlying Offenses We draw the essential facts of the offense from the probation presentence report prepared in early February 2020. G.K. ended a three-year relationship with defendant, moving to a location with her elderly mother that she believed defendant could not find. She feared for her safety after ongoing incidents of domestic violence throughout her relationship with defendant. Defendant then “continuously harassed” her with “pervasive” phone calls. He used tracking technology to track her whereabouts, and “identity hiding applications” on the phone he used to harass her.


VIOLATION OF CERTAIN COURT ORDERS OR CONDITIONS OF BOND IN A FAMILY VIOLENCE, CHILD ABUSE OR NEGLECT, SEXUAL ASSAULT OR ABUSE, <mask>, OR TRAFFICKING CASE (a) A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, stalking, or trafficking case and related to the safety of a victim or the safety of the community, an order issued under Chapter 7A, Code of Criminal Procedure,6 an order issued under Article 17.292, Code of Criminal Procedure,7 an order issued under Section 6.504, Family Code,8 Chapter 83, Family Code, if the temporary ex parte order has been served on the person,9 or Chapter 85, *308Family Code,10 or an order issued by another jurisdiction as provided by Chapter 88, Family Code,11 the person knowingly or intentionally: ... (2) communicates: (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner[.] Id. § 25.07(a)(2)(A).12 By its terms, the statute applies only in the very limited context of situations where, at the time of the challenged conduct, a defendant was actively subject to one of these seven types of judicial conditions or orders in a family violence, sexual abuse, stalking, or trafficking case that expressly prohibited him from communicating in threatening or harassing manner with a protected person.


Two Florida statutes were cited on Cobb's journal entry of judgment for his Florida battery conviction: Fla. Stat. § 741.28 and Fla. Stat. § 784.03. The first statute defines domestic violence under Florida law as: "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, <mask>, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." (Emphasis added.) Fla. Stat. § 741.28(2). The second statute defines battery under Florida law as (1) actually and intentionally touching or striking another person against their will, or (2) intentionally causing bodily harm to another person. Fla. Stat. § 784.03(1)(a). Because Cobb was convicted of domestic felony battery in Florida, the first alternate


Later, over defense counsel's Evidence Code section 352 objection, the court permitted Kerr's friend Cheryl Zornes to testify briefly regarding a telephone conversation in which Kerr told her she was afraid of defendant because "every time she turned around [defendant] was there, following her." Another friend, Kim Hyer, likewise was permitted to testify regarding Kerr's statements suggesting she feared defendant. Specifically, Hyer told the jury that Kerr made her promise to take care of Kerr's young son were anything to happen to her. Immediately after this part of *367Hyer's testimony, the court reminded the jury that the limited purpose of this evidence was its relevance to the fear element of the <mask> charge. The court also included a limiting instruction when instructing the jury prior to its deliberations.


T.J. ("Appellant") appeals the judgment of the trial court granting a full order of protection under the Missouri Adult Abuse Act, §§ 455.005-455.090,1 (the "Act"). E.D.H. alleged harassment and <mask> under the Act. Appellant argues, among other things, there was insufficient evidence to "support" an order of protection against her. Appellant's conduct would not have caused fear of physical harm in a reasonable person. Appellant's conduct did not cause E.D.H. substantial emotional distress. We hold there was insufficient evidence to support the order of protection entered against Appellant. We therefore reverse.


*520As a second aspect of this inquiry, the court requested legal memoranda covering the issue of whether defendant’s acts amounted to “engaging in a course of conduct” as defined in Penal Law § 120.50 (3) (<mask> in the third degree) and Penal Law § 215.51 (b) (ii) (contempt in the first degree) and/or whether defendant’s actions amounted to “repeatedly following such person” or “repeatedly committing acts over a period of time” as defined in Penal Law § 215.51 (b) (ii) (contempt in the first degree).


ny that conducted animal testing). We thus conclude that, in referring to “another person,” sections 2261A and 2262 apply to otherwise-covered conduct when the offender and victim are the same sex, and irrespective of the relationship between the offender and victim. Section 2261A also applies when an offender places the target of the <mask> in “reasonable fear of the death of, or serious bodily injury to,” the target’s “spouse or intimate partner” or “causes substantial emotional distress” to the target’s “spouse or intimate partner.” For purposes of VAWA, the term “spouse” cannot be read to cover an individual who is the same sex as the target of the stalking, even if they are married under state law, because the Defense of Marriage Act (“DOMA”) provides that “[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, . . . the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 1 U.S.C. § 7 (2006). 4 DOMA does not, however, address the additional term “intimate part- ner,” which, for purposes of section 2261A, is defined in 18 U.S.C. § 2266(7) (2006). That section provides that the composite phrase “spouse or intimate partner” means “a spouse or former spouse of the target of the stalking, a person who shares a child in common with the target of the stalking, and a person who cohabits or has cohabited as a spouse with the target of the stalking”; “a person who is or has been in a social relation- ship of a romantic or intimate nature with the target of the stalking, as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relation- ship”; or “any other person similarly situated to a spouse who is protected


*785Thus a lack of moral integrity is not implicit in criminal trespass because the offense may arise in the heat of argument or from “an unreasonable belief that one had license to enter or remain.” (Duffy v Ward, 81 NY2d at 135.) In contrast, the Pennsylvania <mask> statute requires a course of conduct or repeated commission of the elements of the offense. This definition precludes the possibility that the offense arose suddenly in the heat of an argument. (18 Pa Cons Stat Ann § 2709.1 [a].) The Pennsylvania statute’s requirement that the offender intended to place the victim in fear or emotional distress also precludes the possibility that the offender mistakenly believed he had license to commit the acts that placed the victim in fear or distress. (Id.)


<mask>, which is an unreasonable and unacceptable attempt to exert control over someone, takes many shapes and forms. In enacting the “Clinic Access and Anti-Stalking Act of 1999,” which created the crime codified under Penal Law § 120.45, the Legislature recognized that the “unfortunate reality is that stalking victims have been intolerably forced to live in fear of their stalkers” and that “[s]talkers who repeatedly follow, phone, write, confront, threaten or otherwise unacceptably intrude upon their victims, often inflict immeasurable emotional and physical harm upon them.” (L 1999, ch 635, § 2, cited in People v Stuart, 100 NY2d at 416, 417 [emphasis added].) Defendant is in every sense of the word a stalker who has “unacceptably intruded” on his victim. As such, he continues to pose a real and ongoing danger to plaintiffs safety and well-being. Accordingly, the court will grant her application for a final order of protection that will require him to not only stay away from her but to stay away from the Hideout.


Patrick J. McGrath, J. The above named defendant stands charged with the crimes of <mask> in the second degree, criminal contempt in the first degree, criminal contempt in the second degree (eight counts), in violation of sections 120.55 (2), 215.51 (b) (iii) and 215.50 (3) *711of the Penal Law. The defendant filed an omnibus motion on February 1, 2002, and the People filed an affirmation in opposition thereto on February 21, 2002.


Turning directly to the case at bar, we note that "[d]omestic violence and abuse" is defined as "physical injury, serious physical injury, <mask>, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]" Kentucky Revised Statutes (KRS) 403.720. Additionally, KRS 403.750(1) states that "[a]ny family member or member of an unmarried couple" may file a petition for a protective order under the domestic violence statutes. The definition of "[m]ember of an unmarried couple" includes "each member of an unmarried couple which allegedly has a child in common...." KRS 403.720(5).


Plaintiff also testified credibly and convincingly as to what might be called the fear factor. This is the second element of the *1120crime of <mask> in the fourth degree, which requires that the conduct at issue be such that it can reasonably be expected to cause fear for one’s health, safety and property. The fear on plaintiff’s part as she confronted her ex-husband in the courtroom was actually palpable. Asked if she was afraid of him, she responded as follows:


“(a) (1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. [¶] (b) Abuse is not limited to the actual infliction of physical injury or assault.” (Italics added.) Family Code section 6320, subdivision (a), referenced in subdivision (a)(4) of Family Code section 6211, lists the following behaviors as subject to being enjoined: “molesting, attacking, striking, <mask>, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party.” (Italics added.) “ ‘[T]he plain meaning of the phrase “disturbing the peace of the other party” in [Family Code] section 6320’ ” includes “ ‘conduct that destroys the mental or emotional calm of the other party.’ ” (People v. Sorden (2021) 65 Cal.App.5th 582, 601 (Sorden), some italics added, quoting In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni).) As the Nadkarni court reasoned: “The ordinary meaning of ‘disturb’ is ‘[t]o agitate and destroy (quiet, peace, rest); to break up the quiet, tranquility, or rest (of a person, a country, etc.); to stir up, trouble, disquiet.’ [Citation.] ‘Peace,’ as a condition of the individual, is ordinarily defined as ‘freedom from anxiety, disturbance (emotional, mental or spiritual), or inner conflict; calm, tranquility.’ [Citation.] Thus, the plain meaning of the phrase ‘disturbing the peace of the other party’ in [Family Code] section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party.” (Nadkarni, at p. 1497, italics added.)


The court stated, "I'm going to restrain each party from harassing or following or <mask>, or any of those things to the other party, and I'm going to issue a restraining order against communicating with the other party.... [¶] ... [¶] So, I'm going to eliminate their contact.... I'm going to order each person to stay 100 yards away from the other person...."


“A person is guilty of <mask> in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct: “1. is likely to cause reasonable fear of material harm to the physical health, safety or property of such person * * * or “2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person * * * and the actor was previously clearly informed to cease that conduct.”


The court initially expressed some concern regarding Juror No. 5's impartiality, finding it "unusual" that a juror would be reading a book on <mask> during the trial. After questioning the juror, however, the court concluded that her exposure to The Gift of Fear did not affect her ability to be fair, impartial, and objective. In reaching that conclusion, the court found that Juror No. 5 had been given the book by her chiropractor rather than having sought out the material herself, and that she had read the book only briefly before seeing a reference to the prosecutor and setting it aside. These findings, which are based on the court's assessment of the credibility of Juror No. 5's responses to questions posed by the court and the parties, are supported by substantial evidence.


Cavin v. Abbott , 545 S.W.3d 47, 70-71, No. 03-16-00395-CV, 2017 WL 3044583, at *16, 2017 Tex. App. LEXIS 6511, at *41 (Tex. App.-Austin July 14, 2017, no pet.) ; see id. at 49, 2017 WL 3044583, at *1, 2017 Tex. App. LEXIS 6511, at *1-2 (summarizing holdings that TCPA applied "in the context of litigation arising from family tumult over an adult daughter's choice of a husband," including requiring dismissal of claims based on alleged <mask> and car theft); Elite Auto Body LLC v. Autocraft Bodywerks, Inc. , 520 S.W.3d 191, 193 (Tex. App.-Austin 2017, pet. dism'd) (summarizing holdings illustrating TCPA's use "to defend against claims seeking to remedy alleged misappropriation or misuse of a business's trade secrets or confidential information.").


Defendant Paul Stuart stands convicted, following a nonjury trial, of <mask> in the fourth degree (Penal Law § 120.45 [1], [2]).* The proof presented by the People, including the credited testimony of the complainant and an eyewitness, was strong and persuasive, and established the following facts: that on February 14 and February 26, 2000, defendant approached the then 21-year-old complainant, a stranger, and offered her unsolicited gifts, among them flowers and a box of chocolates; that during the February 26 encounter the complainant told defendant that she could not speak to him because she had a boyfriend; that later that day and on nearly every day for more than five weeks thereafter (through April 7, 2000), defendant “stared at” and followed the complainant throughout the area surrounding her home and school, often “lingering” or “circling around” the complainant and “duckling]” into buildings or behind objects to avoid detection; and that as a result of defendant’s unwanted and extended course of conduct the complainant felt “very scared” and “very uncomfortable.” This evidence, viewed in the light most favorable to the prosecution, clearly was sufficient to support defendant’s stalking conviction. In view of the persistent pattern of conduct painfully depicted *543in the record, the trial court, as factfinder, rationally and reasonably rejected defendant’s proffered explanation that he unintentionally came into contact with the complainant while handing out flyers on behalf of his employer. Upon an independent review of the facts, we find that the verdict was not against the weight of the evidence.


The prosecutor argued that the proffered evidence "makes it very clear that this woman correctional officer was in a position to see this as <mask> behavior and an acceleration of activity." The prosecutor added that "[appellant] did admit that the staff was aware of this past sexual situation. And it seems to me that makes *349the fear of this female correctional officer all the more reasonable. And when the court fits this in with the testimony of Dr. Shenouda and the totality of circumstances here, your Honor, there is no reasonable doubt. All [MDO] criteria are met."


“1. Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, <mask> in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, 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 members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place. For purposes of this article, ‘members of the same family or household,’ shall mean the following: “(a) persons related by consanguinity or affinity; “(b) persons legally married to one another; “(c) persons formerly married to one another regardless of whether they still reside in the same household; “(d) persons who have a child in common regardless of whether such persons have been married or have *299lived together at any time; and “(e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an ‘intimate relationship’ include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an ‘intimate relationship.’ ” Petitioner and respondent are not family members under the Family Court Act. (Contra Turner v Lewis, 434 Mass 331, 749 NE2d 122 [2001] [interpreting a statute for victims of family violence whose language is virtually identical to section 812 (1) (a), and holding that the court has jurisdiction because the grandparent is related by blood through the grandchild to the grandchild’s parent].) Since petitioner and respondent’s son were never married, the parties are not related by affinity. “[A] relation of affinity is based upon marriage (see, Black’s Law Dictionary 59 [6th ed 1990]) and divorce destroys the foundation of that relation.” (Matter of Orellana v Escalante, 228 AD2d 63, 65 [4th Dept 1997].) However, the court finds that this relationship is sufficiently “intimate” to be captured by Family Court Act § 812 (1) (e). One of the indicia of an intimate relationship is its duration. The parties can be expected to have a relationship for a lifetime where, as here, the father maintains a relationship with the child and respondent maintains a relationship with her son and her grandchild. (See Matter of R.M.W. v G.M.M., 23 Misc 3d 713 [Fam Ct, Nassau County 2009] [intimate relationship based on connection through child between mother and father’s resident paramour].) Indeed, one of the alleged incidents occurred on a subway platform where paternal grandmother, father, mother and baby were present and another incident occurred when paternal grandmother rushed up to the child when the grandmother saw the child at McDonald’s. Clearly, by all the testimony, the grandmother wishes to maintain a relationship with the child.


In May 2019, a jury convicted Robert Gross of two counts of interstate <mask> (Counts 1 and 2), 18 U.S.C. §§ 2261A(1)(B) and 2261(b), and six counts related to his unlawful receipt and possession of firearms. The district court sentenced him to a total of 420 months of imprisonment. Gross appeals, challenging the sufficiency of the evidence on Counts 1 and 2, alleging error in the denial of his motion for new trial, and arguing that his sentence is substantively unreasonable. I.


“(a) Requirement to make reasonable accommodation to the needs of victims of domestic violence, sex offenses or <mask>. Except as provided in paragraph (c), any person prohibited by this section 8-107.1 from discriminating on the basis of actual or perceived status as a victim of domestic violence or a victim of sex offenses or stalking shall make reasonable accommodation to enable a person who is a victim of domestic violence, or a victim of sex offenses or stalking to satisfy the essential requisites of a job provided that the status as a victim of domestic violence or a victim of sex offenses or stalking is known or should have been known by the covered entity.” (Emphasis supplied.)


The federal <mask> statute defines two separate crimes: one prohibiting stalking via interstate travel under 18 U.S.C. § 2261A(1), and another prohibiting stalking via interstate communications (often called cyberstalking) under 18 U.S.C. § 2261A(2). See United States v. Gonzalez, 905 F.3d 165, 180 (3d Cir. 2018) (listing elements for both crimes). Only cyberstalking includes a “course of conduct” requirement. In contrast, interstate travel stalking requires that a defendant cause emotional distress “in the course of, or as a result of, such travel.” 18 U.S.C. § 2261A(1). Thus, for an interstate travel stalking charge, a single interstate trip is sufficient. See United States v. Lee, 790 F.3d 12, 18 (1st Cir. 2015) (affirming stalking conviction over challenges to sufficiency of the evidence where defendant took a single interstate trip); United States v. Walker, 665 F.3d 212, 224–25 (1st Cir. 2011) (holding that the interstate trip can itself be sufficient to convict where the victim suffered emotional distress as a result of that trip).


On the facts and circumstances presented, the time frame alleged in the instrument accusing defendant of <mask> in the fourth degree was not per se unconstitutional (People v Sedlock, 8 NY3d 535, 538 [2007]; People v Bennett, 57 AD3d 688, 690 [2008]; People v Rozarlo, 20 Misc 3d 76, 81 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; cf. People v Boyette, 41 Misc 3d 48, 50-51 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]) and, absent timely objection, we decline to reach the issue (CPL 470.05 [2]).