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

664
CAF 16-00204
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF LAURALEE PFALZER,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOHN E. PFALZER, JR., RESPONDENT-RESPONDENT.


BRIDGET L. FIELD, ROCHESTER, FOR PETITIONER-APPELLANT.

POPE LAW FIRM, PLLC, WILLIAMSVILLE (PAUL T. BUERGER, JR., OF COUNSEL),
FOR RESPONDENT-RESPONDENT.

JEFFREY D. OSHLAG, ATTORNEY FOR THE CHILDREN, BATAVIA.


     Appeal from an order of the Family Court, Genesee County (Eric R.
Adams, J.), entered December 22, 2015 in a proceeding pursuant to
Family Court Act article 6. The order dismissed the petition.

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

     Memorandum: Petitioner mother appeals from an order that
dismissed her petition seeking modification of a judgment of divorce
that awarded joint custody of the subject children to the parties and
primary residential placement to respondent father. The mother’s
contention that Family Court erred in failing to conduct a Lincoln
hearing is not preserved for our review (see Bielli v Bielli, 60 AD3d
1487, 1487, lv dismissed 12 NY3d 896; Matter of Nielsen v Nielsen, 225
AD2d 1050, 1050, lv denied 88 NY2d 805). In any event, the mother’s
contention is without merit inasmuch as “[a]n in camera interview is
not warranted where, as here, a court has before it sufficient
information to determine the wishes of the children” (Bielli, 60 AD3d
at 1487; see Matter of Gallo v Gallo, 138 AD3d 1189, 1191). We reject
the mother’s contention that she was deprived of her right to
effective assistance of counsel based on her attorney’s failure to
request a Lincoln hearing. As noted, “there is no indication that
[he] would have succeeded in obtaining a Lincoln hearing” even if he
had requested one (Matter of Venus v Brennan, 103 AD3d 1115, 1117).
Furthermore, the mother’s attorney could have believed that a Lincoln
hearing would produce harmful evidence against the mother, and we
therefore conclude that the mother failed to “demonstrate the absence
of strategic or other legitimate explanations for” her attorney’s
alleged shortcoming in failing to request a Lincoln hearing (Matter of
Brown v Gandy, 125 AD3d 1389, 1390 [internal quotation marks
                                 -2-                           664
                                                         CAF 16-00204

omitted]). Contrary to the mother’s further contention, “ ‘the
failure to call particular witnesses does not necessarily constitute
ineffective assistance of counsel–particularly where the record fails
to reflect that the desired testimony would have been favorable’ ”
(Matter of Bennett v Abbey, 141 AD3d 882, 884). In our view, the
mother’s contention is “impermissibly based on speculation, i.e., that
favorable evidence could and should have been offered on [her] behalf”
(Matter of Devonte M.T. [Leroy T.], 79 AD3d 1818, 1819; see Matter of
Coleman v Millington, 140 AD3d 1245, 1248).

     Lastly, we reject the mother’s contention that the court erred in
dismissing her petition without conducting an inquiry into the best
interests of the children. We conclude that “there is a sound and
substantial basis in the record for Family Court’s determination that
the mother failed to make the requisite evidentiary showing of a
change in circumstances to warrant an inquiry into whether the best
interests of the child[ren] would be served by modifying the existing
custody arrangement” (Matter of Thompson v Thompson, 124 AD3d 1354,
1354).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
