        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1256
CAF 14-01537
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF DA’SHUNNA M.H., LILLIANNA E.H.,
AND DE’ANDRE W.H.
------------------------------------------------
JEFFERSON COUNTY DEPARTMENT OF SOCIAL SERVICES,    MEMORANDUM AND ORDER
PETITIONER-RESPONDENT;

DELBERT W.H., RESPONDENT-APPELLANT,
AND NICOLE E.H., RESPONDENT.


DELBERT W.H., RESPONDENT-APPELLANT PRO SE.

MICHAEL D. WERNER, WATERTOWN, FOR PETITIONER-RESPONDENT.

RUTHANNE G. SANCHEZ, ATTORNEY FOR THE CHILD, WATERTOWN.

KIMBERLY A. WOOD, ATTORNEY FOR THE CHILD, WATERTOWN.


     Appeal from an order of the Family Court, Jefferson County (Peter
A. Schwerzmann, A.J.), entered August 18, 2014 in a proceeding
pursuant to Family Court Act article 10. The order, among other
things, sentenced respondent Delbert W.H. to five weekends in the
Jefferson County Jail for his willful violation of an order of
protection.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Delbert W.H. (respondent) appeals from an order
determining that he willfully violated an order of protection issued
in favor of his son De’Andre. Family Court credited the testimony of
De’Andre, who described respondent’s intentional contact with him, and
rejected the testimony of respondent’s alibi witness. “According
deference to that credibility determination, as we must, we conclude
that petitioner established by clear and convincing evidence that
[respondent] willfully violated the . . . order of protection” (Matter
of Duane H. v Tina J., 66 AD3d 1148, 1149; see Matter of Kimberly A.K.
v Ronald F.G., 266 AD2d 835, 835, lv denied 94 NY2d 761).

     Respondent further contends that the court erred in precluding
him from impeaching De’Andre’s testimony with two reports of prior
sexual abuse that petitioner determined to be unfounded. That
contention lacks merit. Social Services Law § 422 (5) (b) (i) allows
such reports to be introduced into evidence “by the subject of the
report where such subject is a respondent in a proceeding” pursuant to
                                 -2-                          1256
                                                         CAF 14-01537

Family Court Act article 10, and the reports therefore could have been
introduced if they were relevant to the proceeding. Respondent
concedes, however, that the prior reports of abuse, which were not
made by De’Andre, were determined to be unfounded in part because
De’Andre had asserted that no abuse had occurred. Thus, contrary to
respondent’s contention, the unfounded reports were not relevant to
De’Andre’s credibility or to any other issue, and the court thus
properly refused to allow respondent to introduce them into evidence.
Further, inasmuch as those unfounded reports were not admissible,
respondent’s counsel was not ineffective in failing to articulate the
statutory basis for their admission.

     Finally, we reject respondent’s contention that he was denied
effective assistance of counsel by counsel’s failure to conduct a
redirect examination of his alibi witness about an alleged inaccuracy
in the testimony of that witness on cross-examination. Respondent
made no showing that his alibi witness’s testimony was inaccurate or
that counsel’s redirect examination would have elicited testimony
favorable to respondent. Therefore, respondent’s contention “is
impermissibly based on speculation, i.e., that favorable evidence
could and should have been offered on his behalf” (Matter of Devonte
M.T. [Leroy T.], 79 AD3d 1818, 1819; see also Matter of Amodea D.
[Jason D.], 112 AD3d 1367, 1368).




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
