| Matter of Jaiden J. (Cleveland J.) |
| 2012 NY Slip Op 06024 [98 AD3d 667] |
| August 22, 2012 |
| Appellate Division, Second Department |
| In the Matter of Jaiden J., an Infant. Suffolk County Department ofSocial Services, Respondent; Cleveland J., Appellant. (Proceeding No. 1.) In the Matter of KaylaJ., an Infant. Suffolk County Department of Social Services, Respondent; Cleveland J. Appellant.(Proceeding No. 2.) In the Matter of George P. III, an Infant. Suffolk County Department ofSocial Services, Respondent; Cleveland J., Appellant. (Proceeding No. 3.) In the Matter of NevinL., an Infant. Suffolk County Department of Social Services, Respondent; Cleveland J.,Appellant. (Proceeding No. 4.) |
—[*1] Dennis M. Cohen, County Attorney, Central Islip, N.Y. (Brian B. Mulholland and FrankAlberti of counsel), for respondent. Robert G. Venturo, Patchogue, N.Y., attorney for the children.
In four related child protective proceedings pursuant to Family Court Act article 10,Cleveland J. appeals, as limited by his brief, from so much of an order of fact-finding anddisposition of the Family Court, Suffolk County (Hoffmann, J.), dated September 9, 2011, as,after a fact-finding hearing, found that he abused the child Nevin L. and derivatively abused thechildren Jaiden J., Kayla J., and George P.
Ordered that the order of fact-finding and disposition is reversed insofar as appealed from, onthe facts and in the exercise of discretion, without costs or disbursements, and the matter isremitted to the Family Court, Suffolk County, for a new fact-finding hearing and a newdetermination thereafter.[*2]
The child Nevin L. did not testify at the fact-findinghearing, and the only evidence of his accounts of the occurrence at issue was hearsay admittedthrough other witnesses. In seeking to cast doubt on those accounts, the appellant soughtadmission of Nevin L.'s grand jury testimony from a companion criminal proceeding, which, heargued, was inconsistent with the hearsay accounts. Under the circumstances of this case, wherethe appellant had no other means of showing that Nevin L. had given arguably inconsistentaccounts of the occurrence, the Family Court's preclusion of Nevin L.'s grand jury testimony wasan improvident exercise of discretion (cf. Family Ct Act § 1046 [a] [vi]; CPL190.25 [4]; Matter of District Attorney of Suffolk County, 58 NY2d 436, 444 [1983];People v Di Napoli, 27 NY2d 229, 235 [1970]; see generally Family Ct Act§§ 331.2 [1] [b]; 331.4 [1] [a]).
Accordingly, we remit the matter to the Family Court, Suffolk County, for a new fact-findinghearing, and a new determination thereafter. Skelos, J.P., Balkin, Lott and Miller, JJ., concur.