Opinion
CAF 99-01487
October 1, 2002.
Appeal from an order of Family Court, Monroe County (Miles, J.H.O.), entered February 16, 1999, which, inter alia, denied the petition for visitation.
KATHERINE GLADSTONE, ROCHESTER, FOR PETITIONER-APPELLANT.
NIXON PEABODY LLP, ROCHESTER (JAMES A. HOARE OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Family Court properly determined following a hearing that petitioner is not entitled to visitation with the parties' child. Petitioner was convicted of manslaughter in the second degree for causing the death of the child's 13-month-old half-brother and is serving a sentence of 5 to 15 years. We agree with the contention of petitioner that his incarceration does not, by itself, justify the denial of his petition for visitation ( see Matter of Buffin v. Mosley, 263 A.D.2d 962). Respondent, however, presented expert proof that visitation would be detrimental to the child, and thus the court properly denied the petition ( see Matter of Moses v. Rachal S., 273 A.D.2d 928; Matter of Ellett v. Ellett, 265 A.D.2d 747; Matter of Mohammed v. Cortland County Dept. of Social Servs., 186 A.D.2d 908, 908-909, lv denied 81 N.Y.2d 706).