Opinion
2015-07-08
In the Matter of GABRIEL W. (Anonymous). Administration for Children's Services, respondent; Steven C. (Anonymous), appellant. (Proceeding No. 1) In the Matter of Hunter W. (Anonymous). Administration for Children's Services, respondent; Steven C. (Anonymous), appellant. (Proceeding No. 2).
Peter Dailey, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Janet L. Zaleon of counsel), for respondent.
Peter Dailey, New York, N.Y., for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Richard Dearing and Janet L. Zaleon of counsel), for respondent.
Larry S. Bachner, Jamaica, N.Y., attorney for the children.
Appeal from a corrected order of fact-finding and disposition of the Family Court, Kings County (Alan Beckoff, J.), dated February 10, 2014. The corrected order, after a hearing, found that the father neglected the subject children and placed them in the custody of the Commissioner of Social Services of the City of New York.
ORDERED that the corrected order of fact-finding and disposition is affirmed, without costs or disbursements.
Contrary to the father's contention, the Family Court was entitled to draw a negative inference against him based upon his failure to testify at the fact-finding hearing ( see Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810; Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138; Matter of Jackson F. [Gabriel F.], 121 A.D.3d 1114, 1115, 995 N.Y.S.2d 190; Matter of Mylasia P. [Brenda P.], 104 A.D.3d 856, 856, 961 N.Y.S.2d 531; Matter of Natalie T. [Roger T.], 104 A.D.3d 697, 698, 959 N.Y.S.2d 922).
The Family Court also properly refused to admit into evidence a recording containing alleged prior inconsistent statements of the mother since the father failed to lay a proper foundation for its admission ( see People v. Duncan, 46 N.Y.2d 74, 80–81, 412 N.Y.S.2d 833, 385 N.E.2d 572; People v. Stokes, 126 A.D.3d 1018, 1018; People v. Sawyer, 304 A.D.2d 775, 776, 757 N.Y.S.2d 766).
The father's remaining contention is without merit.