| Matter of Michael U. (Marcus U.) |
| 2013 NY Slip Op 06583 [110 AD3d 821] |
| October 9, 2013 |
| Appellate Division, Second Department |
| In the Matter of Michael U. Administration for Children'sServices; Respondent; Marcus U., Appellant. (Proceeding No. 1.) In the Mater ofMatthew Z.-U. Administration for Children's Services, Respondent; Marcus U.,Appellant. (Proceeding No. 2.) In the Matter of Melaine U. Administration for Children'sServices, Respondent; Marcus U., Appellant. (Proceeding No. 3.) In the Matter of JudithC.Z. Administration for Children's Services, Respondent;Marcus U., Appellant. (Proceeding No. 4.) |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmersand Victoria Scalzo of counsel), for respondent. Tammi D. Pere, West Hempstead, N.Y., attorney for the children Michael U.,Matthew Z.-U., and Melaine U. Steven Banks, New York, N.Y. (Tamara A. Steckler and Diane Pazar of counsel),attorney for the child Judith C.Z.
In related child protective proceedings pursuant to Family Court Act article 10,Marcus U. appeals from an order of fact-finding of the Family Court, Queens County(Richroath, J.), dated December 20, 2011, which, after a hearing, found that he sexuallyabused the child Judith C.Z., and derivatively abused the children Michael U., MatthewZ.-U., and Melaine U.
Ordered that the order is affirmed, without costs or disbursements.[*2]
The determination by the Family Court that theappellant sexually abused the child Judith C.Z. is supported by a preponderance of theevidence (see Family Ct Act § 1046 [b]; Matter of Nicole V., 71NY2d 112, 117 [1987]). In light of the conflicting testimony presented at the fact-findinghearing, the factual findings of the Family Court turned largely on its assessment of thewitnesses' credibility, which is entitled to great weight (see Matter of Trenasia J. [FrankJ.], 107 AD3d 992, 993 [2013]; Matter of Candace S., 38 AD3d 786, 787 [2007]; Matter of Sylvia J., 23 AD3d560, 562 [2005]; Matter of Cassandra C., 300 AD2d 303, 304 [2002]). Onthis record, we find no basis to disturb the Family Court's assessment of the witnesses'credibility.
In addition, the nature of the sexual abuse, its duration, and the circumstances of itscommission, demonstrated a fundamental defect in the appellant's understanding of theduties of parenthood, and his lack of self-control created a substantial risk of harm to anychild in his care. Accordingly, the Family Court's determination that the appellantderivatively abused the other children in the home was supported by a preponderance ofthe evidence (see Matter ofAngelica M. [Nugene A.], 107 AD3d 803, 804-805 [2013]; Matter of Leah R. [Miguel R.],104 AD3d 774 [2013]; Matter of Daniel W., 37 AD3d 842, 843 [2007]; Matterof Amanda LL., 195 AD2d 708, 710 [1993]; Matter of Rachel G., 185 AD2d382, 383 [1992]).
The appellant's contention that the Family Court erred in denying that branch of hismotion which, inter alia, sought to present certain evidence of bank checks allegedlyreceived by Judith C.Z. is without merit. "[A] party who is cross-examining a witnesscannot introduce extrinsic documentary evidence or call other witnesses to contradict awitness' answers concerning collateral matters solely for the purpose of impeaching thatwitness' credibility" (People v Pavao, 59 NY2d 282, 288-289 [1983]; seeBadr v Hogan, 75 NY2d 629, 634-635 [1990]; People v Carey, 67 AD3d 925, 926 [2009]; People vClinkscales, 256 AD2d 353, 354 [1998]). Furthermore, "cross-examination aimed atestablishing a possible reason to fabricate must proceed upon some good-faith basis"(People v Barney, 277 AD2d 460, 460 [2000]; see People v Spencer, 20NY3d 954, 956 [2012]; People v Stewart, 188 AD2d 626, 627 [1992]).Here, the evidence which the appellant sought to introduce was properly excluded as "tooremote and speculative" (People v Hoover, 298 AD2d 599, 599 [2002]; seePeople v Thomas, 46 NY2d 100, 105 [1978]; People v Hines, 102 AD3d 889 [2013]; People v Vankenie, 52 AD3d849, 850 [2008]).
The appellant's contention that the Family Court erred in declining to draw anegative inference against Judith C.Z. or the petitioner when Judith C.Z. exercised herprivilege against self-incrimination is also without merit. "The failure of [a witness] totestify does not permit the trier of fact to speculate about what his [or her] testimonymight have been nor does it require an adverse inference. It does, however, allowthe trier of fact to draw the strongest inference against him [or her] that the opposingevidence in the record permits" (Matter of Commissioner of Social Servs. v Philip DeG., 59 NY2d 137, 141 [1983] [emphasis added]; see Matter of Clarissa S.P. [Jaris S.], 91 AD3d 785, 786[2012]). Under the circumstances presented here, we find no basis to disturb the FamilyCourt's refusal to draw the negative inference urged by the appellant (see Matter ofCommissioner of Social Servs. v Philip De G., 59 NY2d at 141).
The appellant's further contention that the Family Court erred in excluding him fromthe courtroom during the testimony of Judith C.Z. is without merit. The Family Courtreasonably concluded that Judith C.Z. would suffer emotional trauma if compelled totestify in front of the appellant (see Matter of Elisha M.W. [Ronald W.], 96 AD3d 863, 864[2012]; Matter of DeshawnD.O. [Maria T.O.], 81 AD3d 961, 962 [2011]; Matter of Q.-L. H., 27 AD3d738, 739 [2006]; Matter of Lynelle W., 177 AD2d 1008 [1991]; Matterof Donna K., 132 AD2d 1004, 1004-1005 [1987]), and, after properly weighing therespective rights and interests of the parties, thereafter providently exercised itsdiscretion in permitting her to testify via a two-way closed-circuit television set-up."Because the appellant's attorney was present during the child's testimony andcross-examined her on the appellant's behalf, neither the appellant's due process right norhis Sixth Amendment right of confrontation was violated by his exclusion from thecourtroom during the child's testimony" (Matter of Q.-L. H., 27 AD3d at 739;see Matter of Deshawn D.O. [Maria T.O.], 81 AD3d at 962; Matter of SylviaJ., 23 AD3d at 561-562; Matter of Heather S., 19 AD3d 606, 609 [2005]). Rivera,J.P., Lott, Sgroi and Miller, JJ., concur.