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A father cannot be charged with aggravated harassment for allegedly threatening in a phone conversation to kill the mother of his 2-year-old child if she tried to get the child back, a Westchester County (New York) Family Court judge has ruled. Judge Thomas A. Dickerson said to be sustained, such a charge must allege that the father initiated the call; however, in this case, the mother called the father to inquire why the child had not been returned after a visitation. Dickerson granted the defendant’s motion to dismiss a family offense petition filed against him in P.I. v. C.D., 0-3072-00, filed in Family Court, Westchester County, in Yonkers. The judge abbreviated the parties’ names for publication. The court found that Ms. I.’s allegations about Mr. D.’s threats made in a Sept. 6 telephone conversation failed to state elements necessary for menacing, first- or second-degree harassment or disorderly conduct charges. Even though Ms. I.’s petition appeared to allege aggravated harassment, the judge ruled that the charge must be dismissed because Ms. I. initiated the telephone conversation in which the alleged threats were communicated. Her petition said, “He threatened to kill me if I tried to get my 2-year-old daughter back from him … that if I won custody of our daughter on our upcoming court date of 9/25/00, that he would kill both me and our daughter.” Noting that the additional harm inflicted by the intrusive act of telephoning was the “aggravating” element of aggravated harassment, the judge rejected Ms. I.’s argument that Mr. D. intentionally precipitated the disputed phone call by refusing to return the child, knowing that Ms. I. would call. “Respondent’s retention of the child is not an act which could reasonably be construed as intentionally causing the petitioner to make the phone call to respondent ‘in order (for the respondent) to use the instrumentality of the phone for the purpose of communicating threats or abuse,’ ” he wrote. Citing a 1987 ruling by a Town Justice in Eastchester in a case where a woman used the *69 feature on her telephone to return a call in which a defendant was accused of threatening her, Dickerson agreed that “communication must be initiated by the defendant to come within the ambit” of Penal Law Section 240.30 (1), the second-degree aggravated harassment statute. Mr. D. was represented by Mark K. Malone of Bleakley Platt & Schmidt of White Plains, N.Y. Michael D. Karnes of the Bronx appeared for Ms. I.

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