author: Pigott, J. Chief Judge Lippman (dissenting).

text:
    [989 NE2d 26, 966 NYS2d 764]
    The People of the State of New York, Respondent, v Miguel Mejias, Appellant. The People of the State of New York, Respondent, v Antonio Rodriguez, Appellant.
    Argued March 19, 2013;
    decided May 7, 2013

      POINTS OF COUNSEL

      John R. Lewis, Sleepy Hollow, for appellant in the first above-entitled action.
    I. The court committed reversible error when it refused to question juror No. 10 individually (for possible disqualification), after the juror sent a note to the court, prior to closing arguments and the court’s jury charge, indicating that (1) she had already begun discussing the evidence with other jurors, and (2) she had already come to conclusions agreeing with the prosecution that defendants routinely used deceptive language as part of their modus operandi. (People v Buford,
      69 NY2d 290; People v McClenton, 213 AD2d 1; People v Ordenana, 20 AD3d 39; People v Gordon, 77 AD2d 662; People v Shaw, 43 AD3d 685; People v Saunders, 120 Misc 2d 1087; People v Woods, 104 AD2d 322.) II. The trial court’s admitting into evidence extensive testimony about the international drug trade, which included a map of South America, constituted reversible error because it made defendants appear to be part of a worldwide network, which was both without basis in the record and unnecessary to the jury’s understanding of the single drug transaction at issue in this case. (People v Negron, 136 AD2d 523; People v Maldonado, 50 AD2d 556; People v Colon, 172 AD2d 173; People v Soto, 172 AD2d 355; People v Brown, 97 NY2d 500; People v Ramirez, 33 AD3d 460; People v Contreras, 28 AD3d 393.)

      Peluso & Touger, LLP, New York City (Robert Moore and David Touger of counsel), for appellant in the second above-entitled action.
    I. The court committed reversible error when it refused to conduct an individual, in camera inquiry of a juror who sent a note to the court indicating that at least two jurors had prematurely discussed the evidence and formed conclusions. (People v Buford, 69 NY2d 290; People v Ordenana, 20 AD3d 39; People v McClenton, 213 AD2d 1; People v Thomas, 196 AD2d 462.) II. The trial court’s admitting into evidence extensive testimony about the international drug trade, which included a map of South America, constituted reversible error because it made defendants appear to be part of a worldwide network, which was both without basis in the record and unnecessary to the jury’s understanding of the single domestic drug transaction in this case. (People v Negron, 136 AD2d 523; People v Maldonado, 50 AD2d 556; People v Soto, 172 AD2d 355.)

      Cyrus R. Vance, Jr., New York City (Timothy C. Stone and Dana Poole of counsel), for respondent in the first and second above-entitled actions.
    I. The trial judge acted within her discretion in responding to a juror’s request to hear additional testimony about a particular topic. (People v De Jesus, 69 NY2d 855; People v Robinson, 88 NY2d 1001; People v Buford, 69 NY2d 290; People v Daniels, 218 AD2d 589; People v Clark, 81 NY2d 913; People v Irizarry, 83 NY2d 557; People v Triplett, 305 AD2d 230; People v Torres, 248 AD2d 167; People v Rivera, 262 AD2d 235; People v Qiang Zheng, 267 AD2d 257.) II. The trial court’s rulings, allowing background evidence in relation to the practices of large-scale narcotics traffickers, were proper in this case involving the international shipment and delivery of 400 pounds of cocaine. (People v Scarola, 71 NY2d 769; People v Alvino, 71 NY2d 233; People v Taylor, 75 NY2d 277; People v Hill, 85 NY2d 256; People v Brown, 97 NY2d 500; People v Garcia, 83 NY2d 817; People v Singleton, 270 AD2d 190; People v Diaz, 181 AD2d 595; United States v Khan, 787 F2d 28; People v Colon, 172 AD2d 173.)
   OPINION OF THE COURT

Pigott, J.

In People v Buford (69 NY2d 290, 299 [1987]), we held that before a trial court dismisses a sworn juror as “grossly unqualified” under CPL 270.35, it must first “question [the] allegedly unqualified juror individually in camera in the presence of the attorneys and defendant” and conduct “a probing and tactful inquiry” in order to determine whether the juror will be able to deliberate fairly and render an impartial verdict. At issue on this appeal is whether the trial court erred in failing to conduct such an inquiry of a sworn juror who had written a note to the court seeking additional information, before the jury was charged. Because the rationale of Buford is not implicated in the circumstances of this case, we conclude that the trial court did not violate Buford in not conducting an individual inquiry.

I.

Defendants Miguel Mejias and Antonio Rodriguez were indicted for conspiracy in the second degree (Penal Law § 105.15) and criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]) for their respective roles in a drug-trafficking operation involving the movement of 400 pounds of cocaine (valued at $14 million) from California to New York. Much of the evidence against defendants and their coconspirators was derived from wiretapped cell phone conversations. The intercepted calls were in Spanish and contained what the People describe as “cryptic and coded” language. At trial, the People called a special agent with the Drug Enforcement Agency, whom the trial court qualified as “an expert in the operation of high level narcotics trafficking and interpretation of language over cell phones.” The special agent explained that traffickers often use benign language in describing illegal activity, and interpreted for the jury the conversations engaged in by the various participants in the drug trafficking.

The trial evidence—which consisted of 87 wiretapped conversations between the purported ringleader, Carlos Loveras, and others—established that defendants assisted Loveras in conducting a “dry run” without the cocaine, and that defendant Mejias assisted in securing a “stash house” for the drugs during the actual run. Wiretapped recordings also uncovered conversations whereby law enforcement learned that a codefendant, at Loveras’s request, attempted to purchase a tractor trailer and incorporate a trucking company.

Weeks later, when the truck containing the cocaine arrived in New York, the truck would not fit in the driveway of the stash house. The truck was then taken to a store parking lot, while Loveras and defendant Rodriguez attempted to find an alternative stash house. Mejias stayed behind with the truck. Meanwhile, members of the New York Drug Enforcement Task Force, who had been conducting the wireless surveillance and following the truck, staked out the store parking lot and observed Mejias pacing alongside the truck and, on one occasion, entering it. When Loveras and Rodriguez (and others) returned to the store parking lot, Task Force members arrested them and secured the truck. After an extensive search, law enforcement discovered the cocaine in the trailer’s frame.

The trial of defendants lasted two weeks during which over 200 exhibits were entered in evidence. After the parties had rested their respective cases, but prior to summations, the jurors with the consent of the parties began reviewing exhibits in the courtroom. When the jurors began talking amongst themselves, the court admonished them, stating that “[t]here is no discussion among jurors on anything to do with the trial until you begin your deliberations,” and explained that the jurors could review any exhibits admitted during trial later when they were deliberating.

When the jury exited the courtroom for lunch, a court officer handed the court a handwritten note from a juror, which stated, “We want to know how/when and under what pretext [a codefendant] met Miguel Mejias” (emphasis supplied). The court marked the note as an exhibit, but stated that it did not think it needed “to do anything.” Counsel for defendants disagreed, claiming that the use of the word “we” in the note implied that at least two of the jurors had been engaged in premature deliberations. Defense counsel requested that the court conduct an individual inquiry of the note-writing juror, and specifically ask her if she had been discussing the case with other jurors. The court considered the note as a request for additional evidence, and decided to address the panel as a whole because it did not want to “isolate particular jurors,” a reference to a situation earlier in the trial where the court and counsel questioned a sworn juror in camera about a sensitive personal matter.

Upon the jury’s return to the courtroom, the court addressed the panel.

“I have told you throughout the case, jurors may not discuss the case amongst yourselves, or with any third-party until all the evidence and the law is given to you.
“So this juror handed me a note, but I assume even though the first word is, ‘We,’ that everyone has been following my instructions and not discussing anything about the trial amongst yourselves, or with any third-party. If that’s not the case, and there is anyone who has started discussing the evidence, could you please raise your hand?”

The record indicates that there was no response. The court apprised the jury “that jurors don’t get to ask questions in New York,” that the jury could “only decide what’s in the record,” and that if something was not in the record then it was not evidence. After issuing those instructions, the court took no further action concerning the matter.

Following this admonition, the attorneys gave their summations, the jury was charged and deliberations were conducted. Defendants were convicted as charged. The Appellate Division affirmed, holding, as relevant here, that the trial court did not err in declining to conduct an individual inquiry of the note-writing juror (86 AD3d 429, 430 [1st Dept 2011]). A Judge of this Court granted defendants leave to appeal and we now affirm.

II.

Defendants make two arguments. First, they assert that an individual in camera inquiry was warranted here because the juror’s use of the word “we” indicated that jurors had begun discussing the case prematurely. Second, they argue that the words “under what pretext” implied that at least two of the jurors had accepted the prosecution’s theory that the benign lexicon of the participants in the drug trafficking was a mere pretext for discussions about illegal conduct. The second argument, however, is unpreserved for our review, as defense counsel never argued at trial that the use of the phrase “under what pretext” had the sweeping implication that defendants now claim, leaving only the first argument for consideration.

According to defendants, the trial court committed reversible error when it did not conduct a “probing and tactful” in camera inquiry given the use of the word “we.” We disagree. “If at any time after the trial jury has been sworn and before the rendition of its verdict . . . the court finds, from facts unknown at the time of the selection of the jury, that a juror is grossly unqualified to serve in the case . . . the court must discharge such juror” (CPL 270.35 [1] [emphasis supplied]). We have explained that “each case must be evaluated on its unique facts to determine whether a particular juror must be disqualified under CPL 270.35,” and that it is up to the trial court to question the purportedly unqualified juror individually in camera and to “carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations” (Buford, 69 NY2d at 299).

Our intention in Buford was to create a framework by which trial courts could evaluate sworn jurors who, for some reason during the trial, may “ ‘possess [ ] a state of mind which would prevent the rendering of an impartial verdict’ ” (Buford, 69 NY2d at 298, quoting People v West, 92 AD2d 620, 622 [3d Dept 1983, Mahoney, P.J., dissenting]). Such scenarios include, but are not limited to, a juror’s bias against a particular race (see People v Rodriguez, 71 NY2d 214 [1988]), a juror’s intimate relationship with a prosecution witness (see People v Rentz, 67 NY2d 829 [1986]), or a juror’s conversation with a member of the defendant’s family seeking information about the defendant’s background (see People v Pineda, 269 AD2d 610 [1st Dept 2000], lv denied 95 NY2d 802 [2000]).

Here, there is no indication from the note’s use of the word “we” that the note-writing juror’s impartiality was in doubt or that the juror had committed any misconduct. The note’s contents were indicative of two possibilities: that there had been premature deliberations and/or the jury was requesting additional evidence after the parties had rested and the evidence had closed. To address the former possibility, the court did what was warranted; namely, it issued an additional instruction to the jurors reminding them that they were not to deliberate prior to being charged. Premature deliberation by a juror, by itself, does not render a juror grossly unqualified. In addressing the latter possibility, i.e., that the note was, in effect, asking for additional evidence, the trial court correctly apprised the jury that it was not permitted to ask questions before it had been charged. Absent some indication that the note-writing juror had engaged in some disqualifying conduct, the fact that one or more jurors may have engaged in premature deliberations or requested additional evidence was not sufficient to trigger a Buford inquiry. Nor did the court abuse its discretion by asking the jury panel as a whole whether its members had engaged in premature deliberations and in issuing an unambiguous instruction that they were not to do so.

We have considered defendants’ remaining contentions and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed in Mejias and Rodriguez.

Chief Judge Lippman (dissenting).

After the evidentiary portion of the trial had concluded, but before closing arguments and the court’s charge—which is to say, before jury deliberations were to commence—a note written by juror 11 was handed up to the bench via juror 10. The note read, “We want to know how/when and under what pretext [a codefendant] met Miguel Mejias.” After sharing the note with counsel, the court expressed the view that a response was not necessary since the jury had been repeatedly instructed that they were to base their verdict only on the evidence that was introduced. The following exchange then took place:

“MR. PHILLIPS [defendant Mejia’s counsel]: Well, Judge, the problem is that the note begins, ‘We want to know,’ and that indicates to me that juror number ten has been discussing the evidence with at least one other juror, which is why it’s written ‘we.’ I would ask that you inquire of juror number ten.[]
“THE COURT: Well, it’s also not very well written. ‘Under what pretext.’ So I would say it is her way of expressing herself. It does not necessarily mean ‘we.’
“MR. PHILLIPS: I ask that you ask juror number ten whether she has been discussing any of the evidence with any of her fellow jurors which would be in disobedience to the Court’s rules.”

After a recess, the court, apparently having decided that the note could not be ignored, reviewed her options with counsel. She indicated that she preferred not to speak with the juror individually, but to reiterate to the jury as a whole that they were not supposed to be talking about the case. When Mr. Phillips said that his client remained concerned about the fact that the note began “We want to know,” the court interjected that it did not want to “isolate” jurors. Mr. Phillips nonetheless persisted in requesting the court to “specifically ask [the juror] if she has been talking about the case with the other jurors.” After the prosecutor expressed the view that it would suffice for the court to address the panel as a whole, Mr. Phillips reiterated defendants’ concerns over the juror note. The court responded that counsel was jumping to conclusions, and repeated that she did not want to isolate particular jurors. Mr. Phillips then stated that it remained defendants’ position that the court should inquire of the individual juror responsible for the note. When the court indicated it would not make the requested inquiry, Mr. Phillips asked that the juror be disqualified and replaced with the last alternate. The court replied, “[n]othing occurred.” Mr. Phillips persisted, noting that “[s]peaking to the jury as a whole doesn’t mean Juror Number 10 will respond to the inquiries.” Upon the conclusion of the court’s exchange with Mr. Phillips, the court addressed the jury in open court:

“Right before the recess, court officers handed me a note from Juror Number 10. I assume, first let me say, I have told you throughout the case, jurors may not discuss the case amongst yourselves, or with any third-party until all the evidence and the law is given to you.
“So this juror handed me a note, but I assume even though the first word is, ‘We,’ that everyone has been following my instructions and not discussing anything about the trial amongst yourselves, or with any third-party. If that’s not the case, and there is anyone who has started discussing the evidence, could you please raise your hand?
“(No response).”

It is the People’s position, and now that of the Court, that the trial court did not abuse her discretion. They note that she did not eschew all inquiry, but rather chose to address her inquiry to the entire panel so as not to single anyone out. Her decision not to “isolate” a juror, it is suggested, was reasonable, particularly since the court’s private inquiry of another juror over a personal matter had been unavoidably mortifying to the juror and precipitated the juror’s discharge. The predicament presented by the juror note, however, was very different from the one earlier posed by the discharged juror’s health problem and I think it plain that this Court’s case law did not permit the court to resolve it as she did.

The juror note, it is true, could have been variously understood. It is possible, as the court suggested, that it was just the poorly worded request of an individual juror for additional evidence. On its face, however, it signified that there had been some premature discussion of the evidence by several members of the jury, and could be understood to indicate that some jurors had already accepted the prosecution’s contention that the defendants made liberal use of pretexts to conceal their illicit conspiracy. The possibility of juror misconduct sufficiently serious to require disqualification pursuant to CPL 270.35 having been thus raised, judicial inquiry was, I believe, mandatory and we have been very specific about how such an inquiry is to be conducted:

“In reaching its conclusion [as to whether a juror is unqualified], the trial court must question each allegedly unqualified juror individually in camera in the presence of the attorneys and defendant. Counsel should be permitted to participate if they desire. In a probing and tactful inquiry, the court should evaluate the nature of what the juror has seen, heard, or has acquired knowledge of, and assess its importance and its hearing on the case. In this context, the court should carefully consider the juror’s answers and demeanor to ascertain whether her state of mind will affect her deliberations. The trial court’s reasons for its ruling should be placed on the record” (People v Buford, 69 NY2d 290, 299 [1987] [emphasis supplied]).

Obviously, the only way of reliably ascertaining whether, as the juror note seemed to indicate, jurors had been deliberating before they were permitted to do so, was to ask the author of the note exactly what he or she meant and what, if any, underlying juror conduct was adverted to. The sort of oblique, highly tactful but not at all probing inquiry made in this case, directed to the jury as a whole, is precisely contrary to what Buford requires. Indeed, the uselessness of the trial court’s approach is manifest. There can be no realistic expectation that an errant juror will in open court admit to misconduct in response to a general inquiry addressed to the entire panel, particularly where, as here, the inquiry is prefaced by the court’s announcement of its assumption that no misconduct has occurred. Buford’s requirement of an individualized, in camera examination, in which counsel may participate, is clearly premised on the understanding that a less focused and exacting mode of inquiry will likely be ineffective in disclosing whether there has or has not been juror misconduct, and whether any such misconduct is of a magnitude that would mandate disqualification. However understandable the trial court’s distaste for “isolating” a juror, that was precisely what Buford required where a juror note raised an issue as to whether jurors had discussed the evidence before deliberations were to commence in contravention of the trial court’s repeated admonishments.

Because the inquiry prescribed by Buford was not performed, it is impossible to tell whether members of the jury deliberated before the case was put to the panel as a whole and it is thus impossible to know whether defendants’ fundamental right to a proper jury verdict was honored. This being the case, harmless error analysis is not appropriate. The requirement that a defendant show prejudice to obtain a new trial by reason of juror misconduct (see People v Irizarry, 83 NY2d 557, 561 [1994]) is not applicable where, as here, the relevant claim is that the mandated procedure for exploring a colorable mid-trial allegation of juror misconduct has not been followed. A defendant cannot show prejudice when he or she has not been afforded the process necessary to ascertain whether there has in fact been misconduct, much less whether any such misconduct was prejudicial.

Buford, I note, does not impose an utterly inflexible requirement. It recognizes that there are juror irregularities, the trivial character of which is plain and undisputed, and which do not trigger the requirement for an in camera inquiry (69 NY2d at 299 n 4). It is plain, however, that the circumstances evidently referred to in the juror note here at issue do not fall within that benign description.

The majority nonetheless attempts to disarm the note of its Buford consequence by relying on the concept of preservation to avoid consideration of one part of the note’s single sentence, and by misreading Buford to require indicia of gross lack of qualification as a condition of the inquiry the case prescribes.

As to the first of these tacks, it is clear that counsel meticulously preserved his claim that the note was indicative of premature deliberation on the part of at least two jurors. While he focused upon the phrase “[w]e want to know,” that clause was not semantically severable from the same sentence’s statement of what the jurors wanted to know. The problem that counsel unmistakably brought to the court’s attention by his numerous and very explicit timely objections was that the juror note facially signified that members of the panel had engaged in pre-deliberation discussions, not about the weather or some other innocuous matter, but about the evidence and the way in which it either did or did not comport with the People’s factual theory of the case. If that had happened, it was a serious, and not a trivial, circumstance quite possibly involving juror “misconduct of a substantial nature,” i.e., conduct sufficiently serious to mandate juror disqualification pursuant to CPL 270.35 (1) (see e.g. People v Ordenana, 20 AD3d 39 [1st Dept 2005], lv denied 5 NY3d 831 [2005]).

While acknowledging that, even when only the “we” portion of the note is considered, the communication was indicative of the possibility that there had been premature deliberations (majority op at 79), the Court finds that possibility insufficient to require a Buford inquiry because “[p]remature deliberation by a juror, by itself, does not render a juror grossly unqualified” (majority op at 79). The relevant question, however, is not whether premature deliberation by itself would necessitate a juror’s disqualification pursuant to CPL 270.35 (1), but rather whether the possibility that that has occurred, patently raised by a juror’s own written representation to the court, is sufficient to trigger a court’s obligation under Buford to ascertain whether that activity, itself forbidden, has in fact taken place and, if so, whether it has compromised the affected jurors’ ability to enter into deliberations free of prematurely formed biases and alliances inimical to their obligation to deliver, and the defendant’s entitlement to receive, a verdict based solely on a unitary consideration of the complete evidentiary portion of the trial by the entire constitutionally required 12-person common-law jury (see People v Ryan, 19 NY2d 100, 103-104 [1966]). It should be obvious that the concerns raised by the juror note here involved were of an order that the procedure mandated by Buford was designed to address.

I have no doubt that the trial court’s actions were well-meant—in addition to her concern for the sensibilities of individual jurors, the court may have feared that the probing inquiry sought risked a mistrial since there was only one alternate juror remaining and more than one juror would have been involved in any disclosed misconduct. Nonetheless, a defendant’s right to a proper jury verdict is fundamental and the procedure mandated in Buford to protect that right, and more broadly the integrity of the trial and its outcome, is soundly conceived. I see no adequate basis to conclude that it was dispensable under the circumstances that prompted these defendants’ very explicit request for it. Certainly, the rationale for the prescribed inquiry did not become less compelling because it was sought in a complex, high profile drug prosecution, and the majority, correctly, does not suggest otherwise. But, in the absence of some more satisfactory explanation than that supplied by the majority, it is difficult to understand why the Court has so limited the availability of an important prophylactic device, requiring its use only where the conduct it is directed at probing and characterizing is already largely made out upon the record, but upholding its denial where the prescribed procedure is absolutely essential to the investigation of a credible report of potentially serious juror misconduct.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents and votes to reverse in an opinion in which Judge Rivera concurs.

In each case: Order affirmed.

      . Although Mr. Phillips was, at the time, under the impression that the note had been written by juror 10, probably because juror 10 handed the note to the court officer, in fact the note was authored by juror 11.

      . The People’s expert, for example, testified at length as to the various linguistic subterfuges used by the conspirators to mask references to illicit transactions in their phone communications. The jury’s acceptance of the expert’s interpretation of the numerous tapped phone conversations of the alleged coconspirators was crucial to the People’s case.

      . CPL 270.40 expressly requires that the jury be admonished at the trial’s commencement that they “may not converse among themselves or with anyone else upon any subject connected with the trial,” and it is a standard instruction that “[o]ur law . . . does not permit jurors to converse among themselves about the case until the Court tells them to begin deliberations because premature discussions can lead to a premature final decision” (CJI2d[NY] Jury Admonitions in Preliminary Instructions).

      . In any case, Irizarry did not involve juror misconduct. The post-verdict claim there was that the failure to seal one jury’s verdict until a verdict had been reached by the second jury in the two-jury trial, itself required the conclusion that the second verdict had been influenced by the first.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [990 NE2d 110, 967 NYS2d 872]
    In the Matter of Shawn G. Granger, Respondent, v Danielle D. Misercola, Appellant.
    Argued March 20, 2013;
    decided April 30, 2013

      POINTS OF COUNSEL

      Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), for appellant.
    I. The lower courts employed an incorrect standard in reviewing the merits of the petition. (Finlay v Finlay, 240 NY 429; Matter of Alison D. v Virginia M., 77 NY2d 651; Martin v Martin, 45 NY2d 739; Braiman v Braiman, 44 NY2d 584; Obey v Degling, 37 NY2d 768; Matter of Bachman v Mejias, 1 NY2d 575; Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89; Daghir v Daghir, 56 NY2d 938; Weiss v Weiss, 52 NY2d 170.) II. The record lacks a sound and substantial basis to support the Family Court’s determination that prison visitation would be in the child’s best interests. (Sitts v Sitts, 74 AD3d 1722, 18 NY3d 801; Fox v Fox, 177 AD2d 209; Matter of Vincent L., 46 AD3d 395; Matter of Cole v Comfort, 63 AD3d 1234; Matter of Donald C. v Michelle T., 254 AD2d 124; Matter of Smith v Smith, 92 AD3d 791; Matter of Goldsmith v Goldsmith, 68 AD3d 1209; Matter of Lonobile v Betkowski, 295 AD2d 994; Matter of Ruple v Harkenreader, 99 AD3d 1085; Matter of Butler v Ewers, 78 AD3d 1667.) III. The intermediate appellate court erred in failing to consider the impact of petitioner’s change in location on the child’s best interests. (Matter of Louise E.S. v W. Stephen S., 64 NY2d 946; Matter of Moore v Schill, 44 AD3d 1123; Matter of Michael B., 80 NY2d 299; Affronti v Crosson, 95 NY2d 713; Matter of Shaida W., 85 NY2d 453; Williams v Brown, 53 App Div 486; Dorr v Esders, 112 App Div 896; Matter of Ruple v Harkenreader, 99 AD3d 1085; Matter of Fewell v Ratzel, 99 AD3d 1237; Matter of Steven M. v Meghan M., 43 AD3d 1349.)

      Charles J. Greenberg, Amherst, for respondent.
    I. The Jefferson County Family Court and the Appellate Division employed the correct standard in reviewing the merits of the petition. (Weiss v Weiss, 52 NY2d 170; Matter of Thomas v Thomas, 277 AD2d 935; Matter of Davis v Davis, 232 AD2d 773.) II. There is a sound or substantial basis in the record to support the Family Court’s determination that prison visitation would be in the child’s best interest. (Matter of Moore v Schill, 44 AD3d 1123; Matter of McCullough v Brown, 21 AD3d 1349; Matter of Rogowski v Rogowski, 251 AD2d 827; Matter of Hadsell v Hadsell, 249 AD2d 853.) III. The Appellate Division did not err by failing to consider the impact of the petitioner’s change in location on the child’s best interests. (Matter of Michael B., 80 NY2d 299; Matter of Moore v Schill, 44 AD3d 1123.)

      Koffs Law Firm, Chaumont (Melissa L. Koffs of counsel), Attorney for the Child.
    I. The lower courts erred in determining it was in the child’s best interest to visit the father at prison and used the wrong test in making that determination. (Friederwitzer v Friederwitzer, 55 NY2d 89; Eschbach v Eschbach, 56 NY2d 167; Daghir v Daghir, 82 AD2d 191; Matter of Gloria S. v Richard B., 80 AD2d 72.) II. The trial court did not have a sound and substantial basis to determine that it was in the child’s best interests to visit petitioner father while he was incarcerated. (Matter of Morales v Bruno, 29 AD3d 1001; Matter of Wispe v Leandry, 63 AD3d 853; Sitts v Sitts, 74 AD3d 1722; Fox v Fox, 177 AD2d 209; Eschbach v Eschbach, 56 NY2d 167; Matter of Cardona v Vantassel, 96 AD3d 1052; Matter of Flood v

      Flood, 63 AD3d 1197; Matter of Tanner v Tanner, 35 AD3d 1102; Matter of Garraway v Laforet, 68 AD3d 1192; Matter of Eck v Eck, 33 AD3d 1082.) III. The intermediate appellate court should have reviewed the lower courts’ lack of setting an appropriate distance for the child to travel to see his father. (Matter of Michael B., 80 NY2d 299.)
   OPINION OF THE COURT

Pigott, J.

Petitioner, an inmate in New York’s correctional system, who had acknowledged paternity of a child prior to his imprisonment, commenced this Family Court Act proceeding seeking visitation with the child after respondent mother refused to bring the child to the prison. Following a fact-finding hearing, Family Court granted the petition, awarding petitioner periodic four-hour visits at the prison with the child, who was then three years old.

Family Court noted that “the law in New York presumes visitation with a non-custodial parent to be in the child’s best interest and the fact that such parent is incarcerated is not an automatic reason for blocking visitation.” The court found that petitioner had “demonstrated that he was involved in a meaningful way in the child’s life prior to his incarceration and seeks to maintain a relationship.” It further found that the child was old enough to travel to and from the prison by car without harm, and would “benefit from the visitation with his father.” The court considered the length of petitioner’s sentence and reasoned that “[l]osing contact for such a long period is felt to be detrimental to an established relationship.” The court concluded that visitation with petitioner would be in the child’s best interests.

The Appellate Division affirmed Family Court’s order, finding “a sound and substantial basis in the record to support the court’s determination to grant the father visitation with the child in accordance with the schedule set forth in the order” (96 AD3d 1694, 1695 [4th Dept 2012]). The Appellate Division deferred to Family Court’s ability to assess directly the parties’ character and credibility, noting that petitioner had “attempted to maintain a relationship with the child over the telephone and by sending letters, cards, and gifts. . . . [T]he father made, and continues to make, efforts to establish a relationship with the child, and it cannot be said that he is ‘a stranger to the child’ ” (id., quoting Matter of Culver v Culver, 82 AD3d 1296, 1299 [3d Dept 2011]).

While his appeal was pending, petitioner had been moved to a different correctional facility, further from respondent’s home. The Appellate Division made no finding of fact in this regard, ruling that any such change in circumstance was more appropriately the subject of a modification petition (id.).

Respondent’s primary contention is that the lower courts employed an incorrect legal standard in reviewing the petition for visitation. We granted respondent leave to appeal, and now affirm.

In Weiss v Weiss (52 NY2d 170 [1981]), we held that “in initially prescribing or approving custodial arrangements, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access, appropriate provision for visitation or other access by the noncustodial parent follows almost as a matter of course” (id. at 175 [citation omitted]). Subsequent Appellate Division decisions have frequently referred to a rebuttable presumption that, in initial custodial arrangements, a noncustodial parent will be granted visitation. “[I]t is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful” (Matter of Nathaniel T., 97 AD2d 973, 974 [4th Dept 1983]) or proof that the noncustodial parent has forfeited the right to visitation. In the present case, Family Court similarly noted that New York law “presumes visitation with a non-custodial parent to be in the child’s best interest.”

Respondent contends that this presumption is contrary to this Court’s holding in Matter of Tropea v Tropea (87 NY2d 727 [1996]), in which we wrote that, where a custodial parent seeks judicial approval of a relocation plan that would hinder visitation by the noncustodial parent, “presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another” must be rejected (id. at 740). However, in Tropea, we did not reject an initial presumption in favor of visitation, but rather a “mechanical, tiered analysis that prevents or interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances” involved in deciding a relocation case (id. at 738). Our holding was not that presumptions can never be relied upon, but that “each relocation request must be considered on its own merits . . . and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child” (id. at 739). A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation.

Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. “ [Petitioner's incarceration, standing alone, does not make a visitation order inappropriate,” but a demonstration “that such visitation would be harmful to the child will justify denying such a request” (Matter of Mohammed v Cortland County Dept. of Social Servs., 186 AD2d 908, 908 [3d Dept 1992], lv denied 81 NY2d 706 [1993]; see also e.g. Matter of Morales v Bruno, 29 AD3d 1001 [2d Dept 2006]; Matter of Thomas v Thomas, 277 AD2d 935 [4th Dept 2000]; Matter of Davis v Davis, 232 AD2d 773 [3d Dept 1996]). Such a presumption is consistent with Tropea because it does not give the noncustodial parent’s rights “such disproportionate weight as to predetermine the outcome” (id. at 738) or “bar[ ] further inquiry into the salient ‘best interests’ question” (id. at 741). In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited.

In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms “substantial proof’ and “substantial evidence.” “[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence” (Herb v Herb, 8 AD2d 419, 422 [4th Dept 1959]). This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration—that visitation would be harmful to the child—that proceeds by means of sworn testimony or documentary evidence. Thus, the arguments of the party contesting visitation did not amount to “substantial proof’ when that party did not attempt to contradict expert testimony favoring visitation (see Matter of Hughes v Wiegman, 150 AD2d 449, 450 [2d Dept 1989]), when sworn testimony and documentary evidence were entirely missing from the proceeding (see e.g. Matter of Folsom v Folsom, 262 AD2d 875, 876 [3d Dept 1999]; Matter of Thomas v Thomas, 277 AD2d 935 [4th Dept 2000]), or when the trial court’s decision was based on a secret report, without benefit of the parties’ responses (see Herb v Herb). The “substantial proof’ language should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption of visitation. The presumption in favor of visitation may be rebutted through demonstration by a preponderance of the evidence (see generally Tropea, 87 NY2d at 741).

Here, the lower courts used the appropriate legal standard, applying the presumption in favor of visitation and considering whether respondent rebutted the presumption through showing, by a preponderance of the evidence, that visitation would be harmful to the child.

Respondent’s second challenge is that there is no “sound and substantial basis in the testimony” (Bunim v Bunim, 298 NY 391, 393 [1949]) for finding that visitation was in the child’s best interests. However, the factual findings underpinning the lower courts’ best interests determinations in this case—that travel to and from the prison would not harm the child and that petitioner sought to maintain a relationship with the child— constitute affirmed findings of fact that we lack the “power to review . . . if . . . supported by evidence in the record” (Humphrey v State of New York, 60 NY2d 742, 743 [1983]; see e.g. Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]). Here, there is support in the record for the finding that the travel would not be harmful to the welfare of the child, and that petitioner made efforts to establish a meaningful relationship with the child.

Finally, respondent contends that the Appellate Division erred in failing to consider the impact of petitioner’s move from one prison to another. The Appellate Division correctly ruled that the question of petitioner’s move from one prison to another should have been brought to the attention of Family Court, by means of a modification petition. That issue should not have been raised in the first instance for determination by an appellate court (see Matter of Moore v Schill, 44 AD3d 1123 [2007]; see generally Matter of Michael B., 80 NY2d 299, 318 [1992]).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Rivera concur.

Order affirmed, without costs.