Moses v. Rachal S.

Order unanimously affirmed without costs. Memorandum: Family Court properly determined following a hearing that petitioner is not entitled to visitation with the parties’ seven-year-old daughter. Petitioner was sentenced to 7V2 to 15 years in prison for the attempted murder of respondent. Even assuming, arguendo, that the court failed to apply the proper burden of proof (see, Matter of Lonobile v Betkowski, 261 AD2d 829), we conclude that the record is sufficient to enable us to determine that visitation would be harmful to the child (see, Matter of Hadsell v Hadsell, 249 AD2d 853, lv denied 92 NY2d 809). Although there is no proof that the shooting of respondent placed the child in immediate physical danger, petitioner was aware that the child was at home when he shot respondent, and he left respondent lying on the floor seriously wounded for the child to find her. Furthermore, an adverse inference may be drawn from petitioner’s invocation of the Fifth Amendment at the hearing (see, Marine Midland'Bank v Russo Produce Co., 50 NY2d 31, 42-43). (Appeal from Order of Erie County Family Court, Rosa, J. — Visitation.) Present — Pine, J. P., Wisner, Scudder and Law-ton, JJ.