Opinion
2011-09-30
In the Matter of Avis M. BECK, Petitioner–Respondent,v.Robert Leonard BUTLER, Respondent–Appellant.
Appeal from an order of the Family Court, Ontario County (Maurice E. Strobridge, J.H.O.), entered November 24, 2010 in a proceeding pursuant to Family Court Act article 8. The order of protection, among other things, directed respondent to stay away from petitioner.Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for respondent–appellant.Shirley A. Gorman, Brockport, for petitioner–respondent.MEMORANDUM:
In this proceeding pursuant to Family Court Act article 8, respondent contends that Family Court erred in determining that he committed a family offense against petitioner. We reject that contention. “The court's ‘assessment of the credibility of the witnesses is entitled to great weight, and the record supports the court's finding that petitioner was a more credible witness
than respondent’ ” ( Matter of Threet v. Threet, 79 A.D.3d 1743, 913 N.Y.S.2d 628). The record also supports the court's determination that petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of harassment in the second degree (Penal Law § 240.26[3]; see Matter of Corey v. Corey, 40 A.D.3d 1253, 1254–1255, 836 N.Y.S.2d 325; see also Matter of Harrington v. Harrington, 63 A.D.3d 1618, 1619, 881 N.Y.S.2d 737, lv. denied 13 N.Y.3d 705, 2009 WL 2925147). Respondent verbally abused and threatened petitioner throughout a single day, and respondent left numerous threatening messages on petitioner's cellular phone that were played for the court ( see e.g. Matter of Amber JJ. v. Michael KK., 82 A.D.3d 1558, 1559–1560, 920 N.Y.S.2d 448; Matter of Boulerice v. Heaney, 45 A.D.3d 1217, 1218–1219, 846 N.Y.S.2d 734). Further, the “prior experience [of petitioner] with [respondent's] assaultive behavior made the threats credible” ( Matter of Cukerstein v. Wright, 68 A.D.3d 1367, 1369, 892 N.Y.S.2d 226). Although “obscenities alone may not constitute criminal conduct ..., we [conclude] that the verbal acts made in the context described by [petitioner] were not constitutionally protected” ( Corey, 40 A.D.3d at 1255, 836 N.Y.S.2d 325; see People v. Brown, 13 A.D.3d 667, 668, 786 N.Y.S.2d 592, lv. denied 4 N.Y.3d 742, 790 N.Y.S.2d 654, 824 N.E.2d 55).
Finally, we reject respondent's contention that the court abused its discretion in issuing a stay away order of protection ( see Family Ct. Act § 812[2][b]; § 842[a]; see generally Matter of Amy SS. v. John SS., 68 A.D.3d 1262, 1264, 891 N.Y.S.2d 178, lv. denied 14 N.Y.3d 704, 2010 WL 1077448; Harrington, 63 A.D.3d at 1619, 881 N.Y.S.2d 737).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, and GREEN, JJ., concur.