SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
595
CAF 14-00012
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.
IN THE MATTER OF APRIL A. BURLEY,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
BERNARD D. BURLEY, RESPONDENT-APPELLANT.
CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR RESPONDENT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR PETITIONER-RESPONDENT.
MARGARET M. RESTON, ATTORNEY FOR THE CHILD, ROCHESTER.
Appeal from an order of the Family Court, Monroe County (John J.
Rivoli, J.H.O.), entered November 19, 2013 in a proceeding pursuant to
Family Court Act article 8. The order, 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 appeals from an order of protection issued upon
a finding that he willfully violated a prior order of protection
issued in favor of petitioner directing him, inter alia, to refrain
from forcible touching. Contrary to respondent’s contention,
petitioner met her burden of establishing that he was aware of the
terms of that prior order of protection (cf. Matter of Er-Mei Y., 29
AD3d 1013, 1016), and that he willfully violated it (see Matter of
Ferrusi v James, 119 AD3d 1379, 1380). Respondent failed to preserve
for our review his further contention that Family Court improperly
considered testimony regarding an incident not alleged in the petition
(see generally Matter of Haley M.T., 96 AD3d 1549, 1550), and the
record does not support that contention in any event (see Matter of
Chilbert v Soler, 77 AD3d 1405, 1406, lv denied 16 NY3d 701).
Finally, we reject respondent’s contention that the court abused its
discretion in issuing a stay away order of protection (see Matter of
Beck v Butler, 87 AD3d 1410, 1411, lv denied 18 NY3d 801).
Entered: May 1, 2015 Frances E. Cafarell
Clerk of the Court