Medina v. Kast

—Appeal from an order of Family Court, Monroe County (Miles, J.H.O.), entered February 16, 1999, which, inter alia, denied the petition for visitation.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Family Court properly determined following a hearing that petitioner is not entitled to visitation with the parties’ child. Petitioner was convicted of manslaughter in the second degree for causing the death of the child’s 13-month-old half-brother and is serving a sentence of 5 to 15 years. We agree with the contention of petitioner that his incarceration does not, by itself, justify the denial of his petition for visitation (see Matter of Buffin v Mosley, 263 AD2d 962). Respondent, however, presented expert proof that visitation would be detrimental to the child, and thus the court properly denied the petition (see Matter of Moses v Rachal S., 273 AD2d 928; Matter of Ellett v Ellett, 265 AD2d 747; Matter of Mohammed v Cortland County Dept. of Social Servs., 186 AD2d 908, 908-909, lv denied 81 NY2d 706). Present — Green, J.P., Wisner, Scudder, Burns and Lawton, JJ.