SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

204 

CAF 10-00946 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

 

IN THE MATTER OF NICOLE J.R., 

PETITIONER-APPELLANT, 

 

V MEMORANDUM AND ORDER

JASON M.R., RESPONDENT-RESPONDENT. 

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

JASON M. RADUNS, RESPONDENT-RESPONDENT PRO SE. 

CHARLES PLOVANICH, ATTORNEY FOR THE CHILDREN, ROCHESTER, FOR SAMANTHA

C.R. AND REESE J.R.

 

Appeal from an order of the Family Court, Orleans County (James

P. Punch, J.), entered September 22, 2009 in a proceeding pursuant to

Family Court Act article 6. The order, among other things, modified

the terms of petitioner’s visitation. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner mother commenced this Family Court Act

article 6 proceeding seeking to modify the visitation provision of an

order by awarding her, inter alia, monthly visitation with the

parties’ two children at the correctional facility where she is

presently incarcerated. The mother subsequently filed a second

petition alleging that the father had violated a temporary order of

visitation (violation order) issued while the modification petition

was pending. After a hearing, Family Court granted the first petition

in part by awarding the mother six supervised visits per year with the

children at the correctional facility, and the court in addition

determined that the children are prohibited from having any further

contact with their stepfather (visitation order). In a separate

order, the court dismissed the mother’s second petition. As a

preliminary matter, we note that the notice of appeal recites an

incorrect entry date of the visitation order and instead recites the

date on which the violation order was entered. Nevertheless, we

exercise our discretion to treat the notice of appeal as validly taken

from the visitation order inasmuch as all of the mother’s contentions

on appeal concern that order (see generally CPLR 5520 [c]; Foye v

Parker, 15 AD3d 907). We likewise excuse any defect in the manner in

which the notice of appeal was served and treat the appeal as timely

taken pursuant to CPLR 5520 (a) (see generally Dalton v City of
-2- 204 

CAF 10-00946 

Saratoga Springs, 12 AD3d 899, 899-900). 

With respect to the merits of the visitation order, we reject the

mother’s contention that the court improperly limited her visitation

with the children. “Visitation decisions are generally left to Family

Court’s sound discretion, requiring reversal only where the decision

lacks a sound and substantial basis in the record” (Matter of Flood v

Flood, 63 AD3d 1197, 1198; see Matter of Wojcik v Newton [appeal No.

2], 11 AD3d 1011). Here, the record reflects that the mother was

convicted of burglary in September 2008 and was sentenced as a second

felony offender to a minimum aggregate term of incarceration of 5

years and 10 months and a maximum aggregate term of incarceration of

14 years. At the hearing on the petitions, a police officer testified

that one of the parties’ children was with the mother when she

committed one of the burglaries for which she is presently

incarcerated. In its bench decision, the court expressed concern with

respect to the nature of the mother’s communications with the

children, noting that the mother casually lies, that her judgment is

impaired, and that she appears to be morally indifferent. The court

further determined that the mother was “lacking in credibility.” 

Thus, deferring to “the court’s firsthand assessment of the character

and credibility of the parties” (Matter of Thayer v Thayer, 67 AD3d

1358, 1359), we conclude that there is a sound and substantial basis

in the record to support the determination limiting the mother’s

visitation with the children to six supervised visits per year (see

Matter of Baker v Blanchard, 74 AD3d 1427, 1428-1429; Matter of

Garraway v Laforet, 68 AD3d 1192, 1194; Matter of Bougor v Murray, 283

AD2d 695, 695-696). 

The mother further contends that the court erred in prohibiting

the children from having any contact with her husband, the children’s

stepfather, based solely upon the hearsay testimony of respondent

father concerning an allegation that the stepfather engaged in

inappropriate sexual conduct with one of the children. Preliminarily,

we note that the mother failed to preserve for our review her present

contention that the court erred in admitting at the hearing the

father’s uncorroborated hearsay testimony concerning the alleged

sexual abuse inasmuch as she did not object to that testimony at the

hearing (see Matter of Stacey L.B. v Kimberly R.L., 12 AD3d 1124,

1125, lv denied 4 NY3d 704). In any event, we note that there is no

evidence to suggest that the stepfather had regular contact or

visitation with the children, and we thus conclude that, in light of

the allegation of sexual misconduct against the stepfather, we see no

basis to disturb the court’s determination that the children should

have no contact with him. 

Entered: February 18, 2011 Patricia L. Morgan

Clerk of the Court