Dingman v. Purdy

Appellate Division of the Supreme Court of New York

Dingman v. Purdy

221 A.D.2d 817, 633 N.Y.S.2d 682, 1995 N.Y. App. Div. LEXIS 12108

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

DecidedNovember 22, 1995

StatusPublished

Cited by22 cases

This text of 221 A.D.2d 817 (Dingman v. Purdy) 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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Dingman v. Purdy, 221 A.D.2d 817, 633 N.Y.S.2d 682, 1995 N.Y. App. Div. LEXIS 12108 (N.Y. Ct. App. 1995).

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Opinion

—Spain, J.

Appeal from an order of the Family Court of Warren County (Austin, J.), entered January 11, 1994, which denied petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for modification of a prior temporary order of custody and awarded sole custody of the parties’ minor child to respondent.

Petitioner and respondent are the parents of a child born on November 6, 1989. The child has been raised by petitioner, with respondent having visitation rights. Following a court determination that petitioner’s mental illness incapacitated her parenting abilities, respondent received temporary custody pursuant to a Family Court order dated July 9, 1993. After a [818]*818hearing on all outstanding issues, Family Court awarded permanent custody to respondent with supervised visitation granted to petitioner. Petitioner appeals.

We affirm. It is petitioner’s contention that she was denied her constitutional right to the effective assistance of counsel (see, US Const 6th, 14th Amends; NY Const, art I, § 6). Parties to a custody proceeding have a right to be represented by counsel (Family Ct Act §§ 261, 262). "Such right would be meaningless unless the assistance of counsel is effective” (Matter of De Vivo v Burrell, 101 AD2d 607; see, Matter of Omar B., 175 AD2d 834, 835). Petitioner urges that counsel’s failure to call certain mental health experts to testify at the custody hearing destroyed a basis for granting her custody upon which Family Court could have relied. However, petitioner’s counsel was able to introduce the favorable doctors’ reports into evidence without subjecting the doctors’ findings to rigorous cross-examination. In our view, counsel exercised her professional judgment in not calling these witnesses (see, People v Rivera, 71 NY2d 705, 709). Further, there is no proof that petitioner "suffered actual prejudice as a result of the claimed deficiencies, which is a necessary prerequisite to a finding of ineffective assistance of counsel” (People v Frascatore, 200 AD2d 860, 861). Petitioner’s counsel made appropriate motions and objections; she also vigorously cross-examined respondent’s witnesses (see, People v Rollock, 177 AD2d 722, lv denied 79 NY2d 923). Viewed in its totality, the record reveals that petitioner was provided with meaningful and constitutionally competent legal representation.

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, without costs.

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—Spain, J.

Appeal from an order of the Family Court of Warren County (Austin, J.), entered January 11, 1994, which denied petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for modification of a prior temporary order of custody and awarded sole custody of the parties’ minor child to respondent.

Petitioner and respondent are the parents of a child born on November 6, 1989. The child has been raised by petitioner, with respondent having visitation rights. Following a court determination that petitioner’s mental illness incapacitated her parenting abilities, respondent received temporary custody pursuant to a Family Court order dated July 9, 1993. After a [818]*818hearing on all outstanding issues, Family Court awarded permanent custody to respondent with supervised visitation granted to petitioner. Petitioner appeals.

We affirm. It is petitioner’s contention that she was denied her constitutional right to the effective assistance of counsel (see, US Const 6th, 14th Amends; NY Const, art I, § 6). Parties to a custody proceeding have a right to be represented by counsel (Family Ct Act §§ 261, 262). "Such right would be meaningless unless the assistance of counsel is effective” (Matter of De Vivo v Burrell, 101 AD2d 607; see, Matter of Omar B., 175 AD2d 834, 835). Petitioner urges that counsel’s failure to call certain mental health experts to testify at the custody hearing destroyed a basis for granting her custody upon which Family Court could have relied. However, petitioner’s counsel was able to introduce the favorable doctors’ reports into evidence without subjecting the doctors’ findings to rigorous cross-examination. In our view, counsel exercised her professional judgment in not calling these witnesses (see, People v Rivera, 71 NY2d 705, 709). Further, there is no proof that petitioner "suffered actual prejudice as a result of the claimed deficiencies, which is a necessary prerequisite to a finding of ineffective assistance of counsel” (People v Frascatore, 200 AD2d 860, 861). Petitioner’s counsel made appropriate motions and objections; she also vigorously cross-examined respondent’s witnesses (see, People v Rollock, 177 AD2d 722, lv denied 79 NY2d 923). Viewed in its totality, the record reveals that petitioner was provided with meaningful and constitutionally competent legal representation.

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, without costs.

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221 A.D.2d 817, 633 N.Y.S.2d 682, 1995 N.Y. App. Div. LEXIS 12108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dingman-v-purdy-nyappdiv-1995.

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