| Matter of Jewelisbeth JJ. (Emmanuel KK.) |
| 2012 NY Slip Op 05371 [97 AD3d 887] |
| July 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jewelisbeth JJ., a Child Alleged to Be Neglected.Rensselaer County Department of Social Services, Appellant; Emmanuel KK., Respondent.(Proceeding No. 1.) In the Matter of Marializ JJ., a Child Alleged to Be Neglected. RensselaerCounty Department of Social Services, Appellant; Emmanuel KK., Respondent. (Proceeding No.2.) |
—[*1] Euguene P. Grimmick, Troy, for respondent. Heather L. Dukes, Troy, attorney for the children.
[*2]Stein, J. Appeal from an order of the Family Court ofRensselaer County (E. Walsh, J.), entered July 15, 2011, which dismissed petitioner'sapplications, in two proceedings pursuant to Family Ct Act article 10, to adjudicate the subjectchildren to be neglected.
Respondent is the biological father of Marializ JJ. (born in 2007) and the stepfather ofJewelisbeth JJ. (born in 2006). In July 2010, petitioner commenced these proceedings allegingthat respondent had neglected the children, as evidenced by their hospitalization in March 2010with serious injuries that appeared to be the result of child abuse. At the fact-finding hearing inMay 2011, petitioner introduced into evidence a certificate of disposition from a criminalproceeding against respondent in the City of Troy, Rensselaer County, indicating that respondenthad pleaded guilty in October 2010 to assault in the third degree.[FN1] Petitioner then rested, relying on the doctrine of collateral estoppel to prove neglect.Respondent's attorney requested time to file a CPLR 4401 motion to dismiss the petitions andFamily Court adjourned the matter for respondent to file a written motion and for petitioner andthe attorney for the children to file responsive papers. In doing so, the court stated that"[d]epending on the decision of the [c]ourt, we'll either have a new trial date set to haveadditional evidence introduced in the fact[-]finding or schedule for disposition." In opposition tothe motion filed thereafter by respondent, petitioner submitted, among other things, a certifiedcopy of the transcript of respondent's plea allocution in Troy City Court. After reviewing thesubmissions of the parties and the attorney for the children, Family Court dismissed the petitions,with prejudice, finding that it was required to make its determination based upon the evidencepresented at the fact-finding hearing and that such evidence failed to establish the factualallegations set forth in the petitions. Petitioner now appeals and we reverse.
The collateral estoppel effect of a criminal conviction may serve to satisfy a petitioner'sburden of establishing neglect (see generally Family Ct Act § 1046 [b] [i]; Matter of Alexis AA. [John AA.], 91AD3d 1073, 1073 [2012], lv denied 18 NY3d 809 [2012]) where the identical issuehas been resolved in the criminal action (see Matter of Suffolk County Dept. of Social Servs.v James M., 83 NY2d 178, 182-183 [1994]; Matter of Stephiana UU., 66 AD3d 1160, 1162-1163 [2009]; Matter of Doe, 47 AD3d 283, 285[2007], lv denied 10 NY3d 709 [2008]). However, it is not enough to merely establishthe existence of the criminal conviction; the petitioner must prove a factual nexus between theconviction and the allegations made in the neglect petition (see generally Matter of DaphneG., 308 AD2d 132, 134-135 [2003]).
Here, petitioner concedes, as it did in its opposition to respondent's motion, that thecertificate of disposition, alone, was insufficient to establish the requisite factual connectionbetween the criminal conviction and the conduct alleged in the petitions. However, petitionercontends that Family Court abused its discretion in refusing to consider the transcript ofrespondent's plea allocution, which unquestionably provides the pertinent facts. The decision[*3]whether to allow the introduction of evidence after the closeof proof is within the trial court's discretion (see CPLR 4011; Matter of Julia BB., 42 AD3d 208,215 [2007], lvs denied 9 NY3d 815 [2007]). When faced with a request to reopen, courts"should consider whether the movant has provided a sufficient offer of proof, whether theopposing party is prejudiced, and whether significant delay in the trial will result if the motion isgranted" (Kay Found. v S & F TowingServ. of Staten Is., Inc., 31 AD3d 499, 501 [2006]; see Benjamin v Desai, 228AD2d 764, 766-767 [1996]).
In the instant matter, although petitioner did not make a separate motion to reopen theproceedings,[FN2] it clearly requested in its papers in opposition to respondent's motion that Family Court receiveinto evidence a certified transcript of respondent's plea allocution—a copy of which wasannexed to its papers—and consider it in conjunction with the certificate of disposition.Based upon our reading of Family Court's decision, it appears that the court may haveerroneously believed that it lacked discretion to reopen the proceeding in order to consider thetranscript. In any event, we are of the view that, under the circumstances here, the denial of suchrequest was an abuse of discretion.
Petitioner made an appropriate offer of proof by articulating the substance of the transcriptand linking respondent's guilty pleas and admissions therein to the allegations in the petitions (see Matter of Idhailia P. [Philip S.P.],95 AD3d 1333, 1334 [2012]; compare Petroleum Serv. Co. v Steel City PaintingCo., 115 AD2d 872, 873-874 [1985]). In addition, there is no indication that Family Court'sconsideration of the transcript would have caused any undue delay in the trial, particularly since acopy was provided with petitioner's responding papers. Further, the fact that granting petitioner'srequest may prevent respondent from prevailing in the proceedings does not constitute prejudice(see Benjamin v Desai, 228 AD2d at 767). Given petitioner's timely request, its offer ofproof, the lack of delay in the trial or prejudice to respondent and the serious nature of theallegations in the petitions, we conclude that Family Court should have reopened the proof inorder to consider the transcript. Upon our independent review of such proof, we find thatrespondent neglected the children.
Mercure, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is reversed,on the law, without costs, petitions granted, and matter remitted to the Family Court ofRensselaer County for further proceedings not inconsistent with this Court's decision.
Footnote 1: A review of the transcript ofrespondent's plea allocation in that proceeding indicates that, although he was initially chargedwith three counts of assault in the second degree—each of which was reduced to assault inthe third degree—respondent actually pleaded guilty to two counts of endangering thewelfare of a child.
Footnote 2: Given Family Court's statementsjust prior to adjourning the proceedings, petitioner could have reasonably believed that such amotion was not necessary.