SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

521 

CAF 15-00017 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 

 

IN THE MATTER OF JOSEPH CLARK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

TARA HAWKINS, RESPONDENT-APPELLANT.

 

TIMOTHY R. LOVALLO, BUFFALO, FOR RESPONDENT-APPELLANT. 

NOEMI FERNANDEZ, ATTORNEY FOR THE CHILD, BUFFALO.

 

Appeal from an order of the Family Court, Erie County (Kevin M.

Carter, J.), entered December 16, 2014 in a proceeding pursuant to

Family Court Act article 6. The order, inter alia, granted sole

custody of the parties’ child to petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to article 6 of the

Family Court Act, respondent mother appeals from an order awarding

sole custody of the parties’ child to petitioner father. The mother

failed to preserve for our review her contention that Family Court

erred in admitting in evidence at the custody hearing an audio

recording of a telephone conversation between the parties that the

father had secretly recorded. Although the mother’s counsel initially

objected to the recording’s admission, counsel withdrew the objection

after the court adjourned the matter so that counsel could research

the issue. The mother also failed to preserve her further contention

that the court erred in admitting in evidence an audio recording of a

telephone call the father made to 911, during which the father told

the 911 dispatcher that the mother was trying to take the child

without his permission. In fact, when the father’s counsel offered

the recording in evidence, the mother’s counsel stated “I have no

objection, Your Honor.” The Attorney for the Child (AFC) also had no

objection to the second audio recording. In any event, we conclude

that the court properly admitted both recordings. 

The remaining evidentiary-based contention advanced by the mother

is that the court erred in admitting in evidence a sworn statement

given to the police by her adult daughter concerning an incident that

occurred between the parties at the daughter’s house. Although the

mother correctly concedes that the daughter’s testimony at the custody

hearing was inconsistent with parts of her sworn statement, she
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CAF 15-00017 

contends that the statement should not have been admitted because the

daughter acknowledged that she gave the statement to the police and

testified that everything in the statement was true (see generally

People v Buffington, 29 AD2d 229, 231-232). Even assuming, arguendo,

that the court erred in admitting the written statement, such error is

harmless considering that the inconsistent statements were explored by

the father’s counsel during his cross-examination of the daughter, and

the evidence was not particularly prejudicial to the mother (see

generally Beth M. v Susan T., 81 AD3d 1396, 1396). Moreover, there is

ample other evidence in the record supporting the court’s custody

determination (see Matter of Saletta v Vecere, 137 AD3d 1685, 1685-

1686). 

Finally, according deference to the hearing court’s assessment of

witness credibility, we conclude that there is a sound and substantial

basis in the record for awarding custody of the child to the father

with visitation to the mother (see Matter of DeNise v DeNise, 129 AD3d

1539, 1540; see generally Eschbach v Eschbach, 56 NY2d 167, 172–174). 

Entered: June 17, 2016 Frances E. Cafarell

Clerk of the Court