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

419
CAF 13-01774
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF JESSICA W. VOORHEES,
PETITIONER-RESPONDENT-APPELLANT,

                    V                              MEMORANDUM AND ORDER

GARY I. TALERICO, II,
RESPONDENT-PETITIONER-RESPONDENT.
--------------------------------------------
IN THE MATTER OF JESSICA W. VOORHEES,
PETITIONER-APPELLANT,

                    V

GARY I. TALERICO, II, RESPONDENT-RESPONDENT.


MARY R. HUMPHREY, NEW HARTFORD, FOR PETITIONER-RESPONDENT-APPELLANT.

JOHN J. RASPANTE, UTICA, FOR RESPONDENT-PETITIONER-RESPONDENT.

JOHN G. KOSLOSKY, ATTORNEY FOR THE CHILD, UTICA.


     Appeal from an order of the Family Court, Oneida County (Julia M.
Brouillette, R.), entered August 28, 2013 in proceedings pursuant to
Family Court Act articles 6 and 8. The order, among other things,
awarded respondent-petitioner primary physical custody of the subject
child.

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

     Memorandum: Petitioner-respondent mother appeals from an order
that, inter alia, granted the petition of respondent-petitioner father
seeking to modify a prior order of custody by awarding him primary
physical custody of the parties’ child, and dismissed the mother’s
family offense petition. We affirm.

     Contrary to the mother’s contention, we conclude that Family
Court properly determined that the father established “ ‘the requisite
change in circumstances to warrant an inquiry into whether the best
interests of the child would be served by modifying the existing
custody arrangement’ ” (Matter of Mercado v Frye, 104 AD3d 1340, 1341,
lv denied 21 NY3d 859; see Matter of York v Zullich, 89 AD3d 1447,
1448). The father presented evidence establishing that the conditions
in the mother’s residence were unsanitary and unsafe for the child and
                                 -2-                           419
                                                         CAF 13-01774

that the child had been exposed to instances of sexual abuse while
under the mother’s care and supervision (see Matter of Graves v
Stockigt, 79 AD3d 1170, 1171; Matter of Laurie II. v Raymond JJ., 68
AD3d 1170, 1171). Furthermore, according due deference to the court’s
assessment of witness credibility (see Graves, 79 AD3d at 1171), we
conclude that the court’s determination to award primary physical
custody of the child to the father is supported by a sound and
substantial basis in the record (see Mercado, 104 AD3d at 1341-1342).
We note that the mother’s contention that the court erred in
continuing joint legal custody of the child is raised for the first
time on appeal and thus is not properly before us (see generally
Matter of Murphy v Peace, 72 AD3d 1626, 1626).

     Finally, the court did not err in dismissing the mother’s family
offense petition and refusing to issue an order of protection. The
mother contends for the first time on appeal that the father’s actions
constituted the offenses of menacing in the third degree and
disorderly conduct, and we therefore do not consider that contention
(see generally id.). We reject the mother’s further contention that
her petition should have been granted on the ground that the father’s
actions constituted harassment in the second degree. According due
deference to the court’s credibility determinations (see Matter of
Shelly RR. v Frank SS., 72 AD3d 1426, 1426-1427, lv denied 15 NY3d
705), we conclude that the mother failed to establish by a “fair
preponderance of the evidence” that the father engaged in acts
constituting harassment in the second degree (Family Ct Act § 832; cf.
Matter of Chadwick F. v Hilda G., 77 AD3d 1093, 1093-1094, lv denied
16 NY3d 703).




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
