In re Abraham P.

Appellate Division of the Supreme Court of New York

In re Abraham P.

69 A.D.3d 492, 893 N.Y.2d 52

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 21, 2010

StatusPublished

This text of 69 A.D.3d 492 (In re Abraham P.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Abraham P., 69 A.D.3d 492, 893 N.Y.2d 52 (N.Y. Ct. App. 2010).

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Opinion

Petitioner agency established, by a preponderance of the evidence through the testimony of the medical examiner, that appellant’s four-month-old son died of asphyxiation when a coin lodged in his airway, and that the infant was too young to have been able to pick up the coin himself. The autopsy also revealed that the infant had suffered at least one previous anoxic event. It was undisputed that the baby was in appellant’s exclusive care on both occasions.

Appellant failed to sustain her burden of rebutting the evidence of her culpability and the court properly drew the strongest negative inference from her failure to testify (see Mat[493]*493ter of Nicole H., 12 AD3d 182, 183 [2004]). Contrary to her claim, there was sufficient evidence that appellant derivatively abused the subject children in light of the fact that—at best— she took no action to assist the baby on more than one occasion when he was unable to breathe while in her exclusive care (see Matter of Vincent M., 193 AD2d 398, 404 [1993]). Concur— Gonzalez, EJ., Tom, Sweeny, Catterson and Abdus-Salaam, JJ.

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Petitioner agency established, by a preponderance of the evidence through the testimony of the medical examiner, that appellant’s four-month-old son died of asphyxiation when a coin lodged in his airway, and that the infant was too young to have been able to pick up the coin himself. The autopsy also revealed that the infant had suffered at least one previous anoxic event. It was undisputed that the baby was in appellant’s exclusive care on both occasions.

Appellant failed to sustain her burden of rebutting the evidence of her culpability and the court properly drew the strongest negative inference from her failure to testify (see Mat[493]*493ter of Nicole H., 12 AD3d 182, 183 [2004]). Contrary to her claim, there was sufficient evidence that appellant derivatively abused the subject children in light of the fact that—at best— she took no action to assist the baby on more than one occasion when he was unable to breathe while in her exclusive care (see Matter of Vincent M., 193 AD2d 398, 404 [1993]). Concur— Gonzalez, EJ., Tom, Sweeny, Catterson and Abdus-Salaam, JJ.

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Bluebook (online)

69 A.D.3d 492, 893 N.Y.2d 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-abraham-p-nyappdiv-2010.

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