| Matter of Morelli v Tucker |
| 2008 NY Slip Op 01466 [48 AD3d 919] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Philip A. Morelli, Appellant, v Diane L. Tucker,Respondent. |
—[*1] Arroyo, Copland & Associates, Albany (Cynthia Feathers of counsel), for respondent. Tracy A. Donovan Laughlin, Law Guardian, Cherry Valley.
Mercure, J. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered October 20, 2006, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for modification of a prior order of visitation.
The parties are the parents of a son, who was born in 2004. They separated following severalincidents of domestic violence perpetrated by petitioner. Respondent was awarded sole custodyof the child, and petitioner was allowed parenting time on Fridays and alternate weekends.Thereafter, the domestic violence continued to escalate, culminating in two incidents for whichpetitioner was incarcerated. First, petitioner attempted to strangle respondent in August 2005when she arrived to pick up the child from a visit, and police intervention was needed to retrievethe child. In October 2005, despite incarceration for several weeks and the issuance of an order ofprotection against him as a result of the August 2005 incident, petitioner broke into respondent'sresidence after cutting her telephone wires, attacked her with a crowbar and beat her in front ofthe child, and then resisted arrest after police arrived.
This Court recently affirmed petitioner's conviction, based upon the latter incident, ofcriminal contempt in the first degree, burglary in the first degree (two counts), assault in thesecond degree, and criminal mischief in the third degree (People v Morelli, 46 AD3d 1215 [2007]). Petitioner was sentencedto 9½ years in prison to be followed by five years of [*2]postrelease supervision based upon that conviction. Whileincarcerated, he filed a petition for visitation with the child, asserting that respondent's "bitternessis poisoning [his] relationship" with the child without "just cause." Following a fact-findinghearing, Family Court dismissed the petition and prohibited all contact between petitioner andthe child. Petitioner appeals and we now affirm.
"Although the incarceration of a noncustodial parent [does] not, by itself, preclude visitationwith his or her child, a denial of an application for visitation is proper where evidencedemonstrates that visitation would not be in the child's best interest" (Matter of Ellett vEllett, 265 AD2d 747, 747 [1999] [citations omitted]; accord Matter of Conklin v Hernandez, 41 AD3d 908, 910 [2007]).Here, while petitioner denies that he committed any domestic violence against respondent andcontends that she is poisoning his relationship with the child, he stands convicted by guilty pleaof brutally assaulting respondent. Family Court credited respondent's testimony that the assaultoccurred in the presence of the child, who was then 16 months old, and that the child developed afear of men as a result. In addition, the record evinces that the child has not seen petitioner sincethe incident. Under these circumstances and in light of both the child's young age andrespondent's lengthy prison sentence, Family Court's determination that visitation or othercontact with petitioner would not be in the child's best interest has a sound and substantial basisin the record (see Matter of Beverly v Bredice, 299 AD2d 747, 748 [2002]; Matter ofGutkaiss v Leahy, 285 AD2d 752, 753 [2001]; Matter of Hadsell v Hadsell, 249AD2d 853, 854 [1998], lv denied 92 NY2d 809 [1998]).
Cardona, P.J., Spain, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.