In re Christina A.

Appellate Division of the Supreme Court of New York

In re Christina A.

216 A.D.2d 928, 629 N.Y.S.2d 553, 1995 N.Y. App. Div. LEXIS 7257

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

DecidedJune 9, 1995

DocketAppeal No. 1

StatusPublished

Cited by8 cases

This text of 216 A.D.2d 928 (In re Christina A.) 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 Christina A., 216 A.D.2d 928, 629 N.Y.S.2d 553, 1995 N.Y. App. Div. LEXIS 7257 (N.Y. Ct. App. 1995).

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Opinion

Order unanimously affirmed without costs. Memorandum: In this abuse and neglect proceeding, Family Court erred during the fact-finding hearing in taking "judicial notice” of the testimony of two witnesses at a prior hearing pursuant to Family Court Act § 1028 without first determining that they were unavailable (see, CPLR 4517). Nevertheless, that error does not require reversal because a substantial right of a party was not prejudiced (see, CPLR 2002; Moore v Maggio, 96 AD2d 738). The court did not rely on that testimony in finding that the allegations of abuse and neglect had been corroborated; rather, the court relied upon medical and validation testimony of two witnesses who testified at the fact-finding hearing.

Contrary to respondent’s argument, Family Court Act § 1051 (a) does not require the court to refer in its decision to each specific allegation of abuse and neglect in a petition (see, Matter of James O., 210 AD2d 972; Matter of Nassau County Dept. of Social Servs. [Erika K.] v Steven K., 176 AD2d 326, 329). Section 1051 (e), however, requires the court to make a finding of the specific sex offense, as defined in Penal Law article 130, that respondent committed. When that has not been done, this Court can make the necessary finding (see, Matter of Ashley AA., 212 AD2d 937; Matter of Nassau County Dept. of Social Servs. [Erika K.] v Steven K., supra). The corroborated testimony overwhelmingly supports a finding that respondent violated Penal Law § 130.35 (3) (rape in the first degree), Penal [929]*929Law § 130.65 (3) (sexual abuse in the first degree) and Penal Law § 130.50 (3) (sodomy in the first degree).

We have considered the remaining contentions of respondent and conclude that they are without merit. (Appeal from Order of Oswego County Family Court, Roman, J.—Abuse and Neglect.) Present—Denman, P. J., Pine, Wesley, Balio and Boehm, JJ.

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Order unanimously affirmed without costs. Memorandum: In this abuse and neglect proceeding, Family Court erred during the fact-finding hearing in taking "judicial notice” of the testimony of two witnesses at a prior hearing pursuant to Family Court Act § 1028 without first determining that they were unavailable (see, CPLR 4517). Nevertheless, that error does not require reversal because a substantial right of a party was not prejudiced (see, CPLR 2002; Moore v Maggio, 96 AD2d 738). The court did not rely on that testimony in finding that the allegations of abuse and neglect had been corroborated; rather, the court relied upon medical and validation testimony of two witnesses who testified at the fact-finding hearing.

Contrary to respondent’s argument, Family Court Act § 1051 (a) does not require the court to refer in its decision to each specific allegation of abuse and neglect in a petition (see, Matter of James O., 210 AD2d 972; Matter of Nassau County Dept. of Social Servs. [Erika K.] v Steven K., 176 AD2d 326, 329). Section 1051 (e), however, requires the court to make a finding of the specific sex offense, as defined in Penal Law article 130, that respondent committed. When that has not been done, this Court can make the necessary finding (see, Matter of Ashley AA., 212 AD2d 937; Matter of Nassau County Dept. of Social Servs. [Erika K.] v Steven K., supra). The corroborated testimony overwhelmingly supports a finding that respondent violated Penal Law § 130.35 (3) (rape in the first degree), Penal [929]*929Law § 130.65 (3) (sexual abuse in the first degree) and Penal Law § 130.50 (3) (sodomy in the first degree).

We have considered the remaining contentions of respondent and conclude that they are without merit. (Appeal from Order of Oswego County Family Court, Roman, J.—Abuse and Neglect.) Present—Denman, P. J., Pine, Wesley, Balio and Boehm, JJ.

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Bluebook (online)

216 A.D.2d 928, 629 N.Y.S.2d 553, 1995 N.Y. App. Div. LEXIS 7257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-christina-a-nyappdiv-1995.

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