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

1054
CAF 10-02459
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF AVIS M. BECK,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ROBERT LEONARD BUTLER, RESPONDENT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
RESPONDENT-APPELLANT.

SHIRLEY A. GORMAN, BROCKPORT, FOR PETITIONER-RESPONDENT.


     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.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     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 AD3d 1743). 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 AD3d 1253, 1254-
1255; see also Matter of Harrington v Harrington, 63 AD3d 1618, 1619,
lv denied 13 NY3d 705). 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 AD3d
1558, 1559-1560; Matter of Boulerice v Heaney, 45 AD3d 1217, 1218-
1219). Further, the “prior experience [of petitioner] with
[respondent’s] assaultive behavior made the threats credible” (Matter
of Cukerstein v Wright, 68 AD3d 1367, 1369). 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 AD3d at 1255; see People v
Brown, 13 AD3d 667, 668, lv denied 4 NY3d 742, 884).
                                 -2-                         1054
                                                        CAF 10-02459

     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 AD3d 1262, 1264, lv denied 14 NY3d 704; Harrington, 63
AD3d at 1619).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
