Cross v. Davis

Appellate Division of the Supreme Court of New York

Cross v. Davis

269 A.D.2d 833, 703 N.Y.S.2d 789, 2000 N.Y. App. Div. LEXIS 1766

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 16, 2000

StatusPublished

Cited by1 cases

This text of 269 A.D.2d 833 (Cross v. Davis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cross v. Davis, 269 A.D.2d 833, 703 N.Y.S.2d 789, 2000 N.Y. App. Div. LEXIS 1766 (N.Y. Ct. App. 2000).

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Opinion

—Order unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Ontario County Family Court (Harvey, J.). We add only that, with regard to petitioner’s contention that the court erred in admitting in evidence three tape recordings respondent made of conversations with petitioner, petitioner waived any objection to admission of two of the re-[834]*834cor dings. We agree with petitioner that the court erred in admitting the third recording because respondent failed to establish by “clear and convincing * * * proof that the offered evidence is genuine and that there has been no tampering with it” (People v McGee, 49 NY2d 48, 59, cert denied sub nom. Waters v New York, 446 US 942; see, People v Ely, 68 NY2d 520, 527). In view of the ample evidence otherwise supporting the court’s custody determination, however, we conclude that the error is harmless. (Appeal from Order of Ontario County Family Court, Harvey, J. — Custody.) Present — Wisner, J. P., Pigott, Jr., Hurlbutt and Balio, JJ.

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—Order unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Ontario County Family Court (Harvey, J.). We add only that, with regard to petitioner’s contention that the court erred in admitting in evidence three tape recordings respondent made of conversations with petitioner, petitioner waived any objection to admission of two of the re-[834]*834cor dings. We agree with petitioner that the court erred in admitting the third recording because respondent failed to establish by “clear and convincing * * * proof that the offered evidence is genuine and that there has been no tampering with it” (People v McGee, 49 NY2d 48, 59, cert denied sub nom. Waters v New York, 446 US 942; see, People v Ely, 68 NY2d 520, 527). In view of the ample evidence otherwise supporting the court’s custody determination, however, we conclude that the error is harmless. (Appeal from Order of Ontario County Family Court, Harvey, J. — Custody.) Present — Wisner, J. P., Pigott, Jr., Hurlbutt and Balio, JJ.

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Bluebook (online)

269 A.D.2d 833, 703 N.Y.S.2d 789, 2000 N.Y. App. Div. LEXIS 1766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cross-v-davis-nyappdiv-2000.

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