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In re Michael U. (Anonymous)

Supreme Court of New York, Second Department

October 9, 2013

In the Matter of Michael U. (Anonymous). Administration for Children's Services, respondent; and Marcus U. (Anonymous), appellant. (Proceeding No. 1) In the Mater of Matthew Z.-U. (Anonymous). Administration for Children's Services, respondent; and Marcus U. (Anonymous), appellant. (Proceeding No. 2) In the Matter of Melaine U. (Anonymous). Administration for Children's Services, respondent; and Marcus U. (Anonymous), appellant. (Proceeding No. 3) In the Matter of Judith C. Z. (Anonymous). Administration for Children's Services, respondent; and Marcus U. (Anonymous), appellant. (Proceeding No. 4) Docket Nos. N-1649/10, N-1650/10, N-1651/10, N-1652/10

David Laniado, Cedarhurst, N.Y., for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and 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.

REINALDO E. RIVERA, J.P. PLUMMER E. LOTT, SANDRA L. SGROI, ROBERT J. MILLER, JJ.

DECISION & ORDER

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 sexually abused the child Judith C. Z., and derivatively abused the children Michael U., Matthew Z.-U., and Melaine U.

ORDERED that the order is affirmed, without costs or disbursements.

The determination by the Family Court that the appellant sexually abused the child Judith C. Z. is supported by a preponderance of the evidence (see Family Ct Act § 1046[b]; Matter of Nicole V., 71 N.Y.2d 112, 117). In light of the conflicting testimony presented at the fact-finding hearing, the factual findings of the Family Court turned largely on its assessment of the witnesses' credibility, which is entitled to great weight (see Matter of Trenasia J. [ Frank J.], 107 A.D.3d 992, 993; Matter of Candace S., 38 A.D.3d 786, 787; Matter of Sylvia J., 23 A.D.3d 560, 562; Matter of Cassandra C., 300 A.D.2d 303, 304). On this 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 its commission, demonstrated a fundamental defect in the appellant's understanding of the duties of parenthood, and his lack of self-control created a substantial risk of harm to any child in his care. Accordingly, the Family Court's determination that the appellant derivatively abused the other children in the home was supported by a preponderance of the evidence (see Matter of Angelica M. [ Nugene A. ] , 107 A.D.3d 803, 804-805; Matter of Leah R. [ Miguel R ]., 104 A.D.3d 774; Matter of Daniel W., 37 A.D.3d 842, 843; Matter of Amanda LL., 195 A.D.2d 708, 710; Matter of Rachel G., 185 A.D.2d 382, 383).

The appellant's contention that the Family Court erred in denying that branch of his motion which, inter alia, sought to present certain evidence of bank checks allegedly received by Judith C. Z. is without merit. "[A] party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility" (People v Pavao, 59 N.Y.2d 282, 288-289; see Badr v Hogan, 75 N.Y.2d 629, 634-635; People v Carey, 67 A.D.3d 925, 926; People v Clinkscales, 256 A.D.2d 353, 354). Furthermore, "cross-examination aimed at establishing a possible reason to fabricate must proceed upon some good-faith basis" (People v Barney, 277 A.D.2d 460, 460; see People v Spencer, 20 N.Y.3d 954, 956; People v Stewart, 188 A.D.2d 626, 627). Here, the evidence which the appellant sought to introduce was properly excluded as "too remote and speculative" (People v Hoover, 298 A.D.2d 599, 599; see People v Thomas, 46 N.Y.2d 100, 105; People v Hines, 102 A.D.3d 889; People v Vankenie, 52 A.D.3d 849, 850).

The appellant's contention that the Family Court erred in declining to draw a negative inference against Judith C. Z. or the petitioner when Judith C. Z. exercised her privilege against self-incrimination is also without merit. "The failure of [a witness] to testify does not permit the trier of fact to speculate about what his [or her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him [or her] that the opposing evidence in the record permits" (Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d 137, 141 [emphasis added]; see Matter of Clarissa S. P. [ Jaris S. ], 91 A.D.3d 785, 786). Under the circumstances presented here, we find no basis to disturb the Family Court's refusal to draw the negative inference urged by the appellant (see Matter of Commissioner of Social Servs. v Philip De G., 59 N.Y.2d at 141).

The appellant's further contention that the Family Court erred in excluding him from the courtroom during the testimony of Judith C. Z. is without merit. The Family Court reasonably concluded that Judith C. Z. would suffer emotional trauma if compelled to testify in front of the appellant (see Matter of Elisha M.W. [ Ronald W. ], 96 A.D.3d 863, 864; Matter of Deshawn D.O. [ Maria T.O. ], 81 A.D.3d 961, 962; Matter of Q.-L.H., 27 A.D.3d 738, 739; Matter of Lynelle W., 177 A.D.2d 1008; Matter of Donna K., 132 A.D.2d 1004, 1004-1005), and, after properly weighing the respective rights and interests of the parties, thereafter providently exercised its discretion 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 and cross-examined her on the appellant's behalf, neither the appellant's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony" (Matter of Q.-L. H., 27 A.D.3d at 739; see Matter of Deshawn D.O. [ Maria T.O. ], 81 A.D.3d at 962; Matter of Sylvia J., 23 A.D.3d at 561-562; Matter of Heather S., 19 A.D.3d 606, 609).

RIVERA, J.P., LOTT, SGROI and MILLER, JJ., concur.


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