In re Breann B.

185 A.D.2d 711

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 14, 1992
• Status: Published

Opinion

— Order unanimously affirmed without costs. Memorandum: Respondent appeals from an order adjudging that he sexually abused his three-year-old daughter Breann, and that, by reason of such abuse, his two-year-old daughter Juliana is a neglected child (see, Family Ct Act § 1046 [a] [i]). There is no merit to respondent’s contentions that petitioner failed to sustain its burden of proving abuse by a fair preponderance of the evidence. The child’s out-of-court statements were corroborated by medical testimony that her condition was caused by sexual abuse and not by accidental means. We perceive no reason to disturb the court’s decision to place greater weight upon the testimony of the examining physician rather than upon the testimony of a physician who did not examine the child, even though the latter possessed more experience. The probative weight of conflicting expert testimony is a matter peculiarly within the province of the trier of fact (see, Starobin v Hudson Tr. Lines, 112 AD2d 987; Sternemann v Langs, 93 AD2d 819). Furthermore, because the court properly determined that petitioner presented a prima facie case of abuse, it did not err in drawing a negative inference by reason of respondent’s failure to testify (see, Noce v Kaufman, 2 NY2d 347; Jarrett v Madifari, 67 AD2d 396, 408). Although the Trial Judge misstated certain facts in his decision, we reject respondent’s assertion that the decision was "crafted to justify the Court’s own perceptions in the case.” The record supports those facts essential to the court’s determination, and the misstatements do not warrant reversal. (Appeal from Order of Monroe County Family Court, Miller, J. — Abuse and Neglect.) Present —Callahan, J. P., Green, Balio, Fallon and Doerr, JJ.