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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41220
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Thank you Dimitry, Whats left is my short testimony or

This answer was rated:

Thank you Dimitry,

What's left is my short testimony or maybe closing statement - whatever is better. This I guess for tomorrow but characters became precious so I'll start:

In Family Offense Petition the single alleged accusation was taken out of context of legitimate everyday communication between the petitioner and respondent in a form of emails. Farther, it was taken out of context of the particular entire email.
Customer

Thank you again. Do you mind terribly if I respond to this in the morning? I think I am a bit done for the day, and I would prefer to look at this with a clear head. Please advise!
Customer: replied 3 years ago.

Good morning Dimitry,


 


Of course - I had exactly the intent to harass and annoy you in the morning


 


The rest of the testimony:


 


Intent of the entire email was explanation, information and at the very end negotiation. And even the quoted portion of the email was a response to petitioner's email. Maybe emotional response but a response is not harrasment and expressed anger by itself is not a crime.

In 1989 New York Court of Appeals so often cites case, People versus Dietze the court said:

Speech is often “abusive”—even vulgar, derisive, and provocative—and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be “abusive” and intended to “annoy”; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.

Also in People versus Behlin the court siting another well-known case People versus Yablov said:

"In order to sustain a count of aggravated harassment, a complaint must allege a threat which is clear, unambiguous, and immediate."

Presented evidence has nothing clear and unambiguos and the entire correspondence and the entire situation showed that nothing could be far from immediate: the petitioner and the respondent were 3,700 miles apart and neither respondent nor anything in communication told that the respondent was going to do anything immediately or in the near future. In contrary, even with all misinterpretation and possible misrepresentation the nearest future was called as 7 months from the date the email was sent.

In People v. Singh the court said

An information which fails to contain nonhearsay allegations establishing "if true, every element of the offense charged and the defendant's commission thereof" is fatally defective. "`

Allegations established exactly zero elements. There was no intent to harass, threaten, annoy or alarm since the evidence in its entirety was the reply and the response to petitioner's email. The threat was not clear, unambigous and immediate. Actually there was no threat at all and there was no cause of action. The threat was the offer of choosing either voluntarily or ordered by the court luxury life with happy child.

But for the petitioner it was a threat. It was not imminent but clear and present danger. Danger of the court order that could disturb her tiny everyday's conveniences. She wanted a protection and she filed for the Order Of Protection. Not for the protection from the respondent - she clearly showed she didn't need it - and for the protection from the justice that could decide custody case not in her favor. In a custody case she didn't want the other side be a loving father that came to the court with only one goal - to ensure the happiness of his child. She wanted the other side looked the potential murderer and the kindnaper. Order of Protection gave her exactly this plus cost pennies apartment she wanted so much.


Do I have to print the entire case law?

Customer

That is excellent work on the cases, truly. Hammer in court the fact that the alleged threats were not immediate, clear, or unambiguous. Point out that there was no threat as it could not have been acted on. As for printing out case law, I personally do just that, and keep a copy of the legal citation at hand so that the judge and the opposing counsel can verify the case on their own if needed. It generally does not get so far, but that is important if the counselor tries to challenge your law, something that attorneys do as a matter of course with pro se parties.

Good luck.
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