        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1233
CAF 14-02269
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF KATHLEEN MARTIN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CHARLES J. FLYNN, RESPONDENT-APPELLANT.


MUSCATO & SHATKIN, LLP, BUFFALO (MARC SHATKIN OF COUNSEL), FOR
RESPONDENT-APPELLANT.

ZDARSKY SAWICKI & AGOSTINELLI LLP, BUFFALO (DAVID E. GUTOWSKI OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Erie County (Brenda M.
Freedman, R.), entered September 19, 2014 in a proceeding pursuant to
Family Court Act article 8. The order, among other things, granted
the petition, directed respondent to observe the conditions of
behavior specified in an order of protection, placed respondent on
probation for one year, and ordered respondent to obtain a mental
health evaluation and to follow any treatment recommendations.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the fourth ordering
paragraph, and as modified the order is affirmed without costs.

     Memorandum: Respondent appeals from an order finding that he
committed the family offense of harassment in the second degree
(Family Ct Act § 821 [1] [a]; Penal Law § 240.26 [3]). Family Court
issued a five-year order of protection in favor of petitioner, placed
respondent on probation for a period of one year, and ordered that
respondent obtain a mental health evaluation. We reject respondent’s
contention that the court improperly admitted evidence of conduct not
alleged in the family offense petition, and we conclude that, upon
petitioner’s motion, the court properly exercised its discretion to
amend the allegations of the petition to conform to the proof (see
CPLR 3025 [c]; Matter of Barton v Barton, 111 AD3d 1348, 1349; Matter
of Ariel C.W.-H. [Christine W.], 89 AD3d 1438, 1438-1439).

     We reject respondent’s further contention that the evidence
adduced at the hearing did not establish harassment in the second
degree. The determination whether respondent committed a family
offense was a factual issue for the court to resolve, and “[the]
court’s determination regarding the credibility of witnesses is
entitled to great weight on appeal and will not be disturbed if
                                 -2-                          1233
                                                         CAF 14-02269

supported by the record” (Matter of Richardson v Richardson, 80 AD3d
32, 44; see generally Matter of Arlene E. v Ralph E., 17 AD3d 1104,
1104). Based on the evidence presented at the hearing, we conclude
that the court properly determined that respondent committed the
family offense of harassment in the second degree.

     Contrary to respondent’s contention, Penal Law § 240.26 (3) does
not unconstitutionally restrict his freedom of speech. Section 240.26
(3), by its own terms, prohibits “a course of conduct” aimed at
harassing another. That clause “excludes constitutionally protected
speech from its reach [and] plainly distinguishes [the] statute from
those which impose criminal liability for ‘pure speech’ ” (People v
Shack, 86 NY2d 529, 535).

     We reject respondent’s further contention that the court exceeded
its authority by placing respondent on one year of probation and
issuing a five-year order of protection. The Family Court Act
explicitly grants the court the authority to place a respondent on
probation for a period of up to one year (see Family Ct Act § 841
[c]). Similarly, upon the court’s finding that respondent had
violated a prior order of protection, it was authorized to issue a new
order of protection for a period of up to five years (see Family Ct
Act § 842).

     We agree with respondent, however, that the court erred in
ordering him to obtain a mental health evaluation. The court did not
order the evaluation as a condition “necessary to further the purposes
of” the order of protection (Family Ct Act § 842 [k]), and the court
was not otherwise authorized to order the evaluation pursuant to
Family Court Act § 841. We therefore modify the order by vacating the
ordering paragraph directing respondent to obtain a mental health
evaluation.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
