Opinion
June 22, 1995
Stroock Stroock Lavan, New York City (Deborah A. Bigel of counsel), and Dorchin Leidholdt, New York City, for petitioner.
Rosemary Rivieccio, New York City, for Higinio C., Sr., respondent.
Kao Pin Lew, New York City, for Higinio C., Jr., respondent.
Petitioner, Victoria C., has moved for an order permitting the introduction of expert testimony by a mental health professional in a fact-finding hearing which is to be conducted pursuant to Family Court Act § 832. Respondents are opposed to her application, and move, alternatively, for an order directing that any psychological evaluation of the petitioner conducted for purposes of these proceedings be preserved by videotaping.
By petitions filed on January 3, 1995, petitioner alleges that her husband, Higinio C., Sr., and her son, Higinio C., Jr., have committed one or more family offenses, as defined by Family Court Act § 812 (1), and she requests that a final order of protection be issued against each respondent (see, Family Ct Act § 841 [d]; § 842). Mrs. C.'s petitions, as well as family offense petitions filed against her by her husband and son, have been adjourned for a consolidated trial.
In support of her application to introduce expert testimony at the fact-finding hearing, petitioner alleges that her husband has physically and emotionally abused her throughout their 22-year relationship. Petitioner seeks to introduce expert testimony relating to the "battered woman's syndrome" to explain her reaction to the abuse allegedly inflicted by her husband, specifically, her failure to abandon the marital home prior to January 1995, her use, purchase, and sale of narcotics at her husband's direction, and the impact that her deafness had in making her dependent upon him.
For purposes of a fact-finding hearing, Family Court Act § 834 provides: "[o]nly competent, material and relevant evidence may be admitted in a fact-finding hearing".
Because family offense proceedings commenced in the Family Court are civil proceedings (see, People v Williams, 24 N.Y.2d 274; Besharov, Introductory Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct Act art 8, at 125; 12A Zett-Edmonds-Buttrey-Kaufman, N Y Civ Prac, Family Ct Proceedings, § 36.07 [4]; 6 Freed and Brandes, Law and the Family New York, § 10:1 [2d ed]), the rules of civil evidence apply, and "`[a]ll facts having rational probative value are admissible' unless there is sound reason to exclude them" (Ando v Woodberry, 8 N.Y.2d 165, 167; see, People v Scarola, 71 N.Y.2d 769, 777).
The allegations in a family offense petition need only be established by a fair preponderance of the evidence (see, Family Ct Act § 832; Matter of Holcomb v Holcomb, 176 A.D.2d 409; Matter of Maryanne PP. v Richard QQ., 192 A.D.2d 747; Matter of Boyd v Boyd, 193 A.D.2d 1039).
Under New York law, "expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence" (Matter of Nicole V., 71 N.Y.2d 112, 120 [citation omitted]; see, Dougherty v Milliken, 163 N.Y. 527, 533; De Long v County of Erie, 60 N.Y.2d 296, 307; People v Keindl, 68 N.Y.2d 410, 422; People v Taylor, 75 N.Y.2d 277, 288). Courts of this State have admitted expert testimony regarding physical and behavioral responses and reactions which are not generally understood (see, People v Henson, 33 N.Y.2d 63 ["battered child syndrome"]; People v Eisenman, 39 N.Y.2d 810 ["battered child syndrome"]; People v Keindl, supra [psychological reactions of victim of intrafamilial sexual abuse]; Matter of Nicole V., supra ["sexually abused child syndrome"]; Broun v Equitable Life Assur. Socy., 69 N.Y.2d 675, 676 [behavior patterns of suicide victims]; People v Aphaylath, 68 N.Y.2d 945, 946 [stress and disorientation suffered by certain refugees]; People v Taylor, supra [rape trauma syndrome]; Matter of Antoine J., 185 A.D.2d 925 ["shaken baby syndrome"]).
The evidence which petitioner proposes to introduce, expert testimony concerning the "battered woman's syndrome", has found acceptance in the courts of New York (see, People v Emick, 103 A.D.2d 643 [manslaughter prosecution]; People v Ciervo, 123 A.D.2d 393 [manslaughter prosecution]; People v Barrett, 189 A.D.2d 879 [manslaughter prosecution]; People v Torres, 128 Misc.2d 129 [murder prosecution]; Matter of Glenn G., 154 Misc.2d 677 [child protective proceeding]; People v Rossakis, 159 Misc.2d 611 [murder prosecution]), as well as the courts of other jurisdictions (see, e.g., State v Kelly, 97 N.J. 178, 478 A.2d 364 [Sup Ct 1984]; State v Borrelli, 227 Conn. 153, 629 A.2d 1105 [Sup Ct 1993]; State v Koss, 49 Ohio St.3d 213, 551 N.E.2d 970 [Sup Ct 1990]; State v Cababag, 9 Haw. App. 496, 850 P.2d 716 [Ct App 1993], cert denied 74 Haw. 652, 853 P.2d 542; People v Aris, 215 Cal.App.3d 1178, 264 Cal.Rptr. 167 [Ct App 1989], rev denied 1990 Cal LEXIS 906; see also, Matter of Glenn G., 154 Misc.2d, at 686-687, supra; Annotation, Admissibility of Expert or Opinion Testimony on Battered Wife or Battered Woman Syndrome, 18 ALR4th 1153 [1982 1994 Supps]).
Accordingly, I find that evidence relating to battered woman's syndrome is presumptively admissible in this family offense proceeding.
Respondents, at this point, have not sought to challenge the admissibility of "battered woman's syndrome" evidence on the ground that such evidence has not been generally accepted as reliable by mental health professionals (see, Frye v United States, 293 F 1013; People v Wesley, 83 N.Y.2d 417, 422-423).
Respondents' application for an order directing that any psychological examination of petitioner conducted for purposes of this litigation be preserved by videotaping is denied. Respondents' rights to present a defense will be adequately protected by their right to request pretrial disclosure as to the substance of the expert's proposed testimony (CPLR 3101 [d] [1] [i]), and to request an adjournment to consult with and engage a rebuttal expert witness (see, Family Ct Act § 836). They may also request, upon a proper showing, that I direct petitioner to submit to a further examination by a court-designated psychiatrist or psychologist (Family Ct Act § 251).