        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
