From Casetext: Smarter Legal Research

In the Matter of Avis M. Beck v. Butler

Supreme Court, Appellate Division, Fourth Department, New York.
Sep 30, 2011
87 A.D.3d 1410 (N.Y. App. Div. 2011)

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.


Summaries of

In the Matter of Avis M. Beck v. Butler

Supreme Court, Appellate Division, Fourth Department, New York.
Sep 30, 2011
87 A.D.3d 1410 (N.Y. App. Div. 2011)
Case details for

In the Matter of Avis M. Beck v. Butler

Case Details

Full title:In the Matter of Avis M. BECK, Petitioner–Respondent,v.Robert Leonard…

Court:Supreme Court, Appellate Division, Fourth Department, New York.

Date published: Sep 30, 2011

Citations

87 A.D.3d 1410 (N.Y. App. Div. 2011)
930 N.Y.S.2d 515
2011 N.Y. Slip Op. 6805

Citing Cases

Petrie v. Petrie

denied99 N.Y.2d 506, 755 N.Y.S.2d 712, 785 N.E.2d 734). Contrary to the husband's contention, however, we…

Cousineau v. Ranieri

In light of the evidence supporting the three family offenses, petitioner established that an order of…