Opinion
2011-11-10
In the Matter of Andrew D. AYEN, Petitioner–Appellant,v.Kimberly S. SAIN and Christina McConnell, Respondents–Respondents.
Appeal from an order of the Family Court, Jefferson County (Richard V. Hunt, J.), entered July 13, 2010 in a proceeding pursuant to Family Court Act article 6. The order denied and dismissed the petition.Betzjitomir & Baxter, LLP, Bath (Susan Betzjitomir of Counsel), for petitioner–appellant.Paloma A. Capanna, Penfield, for respondent–respondent Christina McConnell.Kimberly A. Wood, Attorney for the Child, Watertown, for Melerina M.M.MEMORANDUM:
In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order dismissing his petition seeking visitation with his daughter at the facility where he is incarcerated. Although we note at the outset that the notice of appeal recites an incorrect entry date for the order contained in the record and from which the father purports to appeal, we nevertheless exercise our discretion to treat the notice of appeal as valid inasmuch as all of the father's contentions on appeal concern the order contained in the record ( see Matter of Nicole J.R. v. Jason M.R., 81 A.D.3d 1450, 1451, 917 N.Y.S.2d 495, lv. denied 17 N.Y.3d 701, 2011 WL 2183839; see generally CPLR 5520[c] ). The father failed to preserve for our review his contention that he was deprived of a fair hearing based on judicial misconduct ( see generally Matter of Dove v. Rose, 71 A.D.3d 1411, 1412, 895 N.Y.S.2d 898; Matter of August ZZ., 42 A.D.3d 745, 747, 840 N.Y.S.2d 184). We reject the further contention of the father that he was denied effective assistance of counsel. “The [father] failed to demonstrate that [he] was prejudiced by the alleged deficiencies in [his] attorney's performance” ( Matter of Nagi T. v. Magdia T., 48 A.D.3d 1061, 1062, 850 N.Y.S.2d 732). Indeed, many of those alleged deficiencies were strategic decisions by the father's attorney that will not be second-guessed by this Court ( see Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 1351–1352, 822 N.Y.S.2d 349, lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990), and “the record reflects that [his] attorney ‘provided meaningful and competent representation’ ” ( Nagi T., 48 A.D.3d at 1062, 850 N.Y.S.2d 732).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
FAHEY, J.P., CARNI, SCONIERS, GORSKI, and MARTOCHE, JJ., concur.