In re Eshale O.

Appellate Division of the Supreme Court of New York

In re Eshale O.

260 A.D.2d 964, 689 N.Y.S.2d 277, 1999 N.Y. App. Div. LEXIS 4432

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

DecidedApril 29, 1999

StatusPublished

Cited by4 cases

This text of 260 A.D.2d 964 (In re Eshale O.) 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.

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In re Eshale O., 260 A.D.2d 964, 689 N.Y.S.2d 277, 1999 N.Y. App. Div. LEXIS 4432 (N.Y. Ct. App. 1999).

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Opinion

Mercure, J.

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered August 22, 1998, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, to adjudicate respondent’s children to be abused and/or neglected.

Following a fact-finding hearing, Family Court found that respondent had abused her daughter by striking her in the face, back and arms with an electrical cord, causing welts and bruising. On appeal from the ensuing order, respondent merely challenges Family Court’s receipt of photographs depicting the child’s injuries. Initially, we are not persuaded that Family Court erred by assisting petitioner’s counsel in establishing a foundation for admission of the photographs. A court may “properly question witnesses to insure that a proper foundation is made for the admission of evidence” (People v Yut Wai Tom, 53 NY2d 44, 58) and question a witness “ fin an effort to clarify confusing testimony as well as * * * to facilitate the orderly and expeditious progress of the [hearing]’ ” (Matter of William T., 182 AD2d 766, 767, quoting People v Collins, 171 AD2d 670, 671, Iv denied 78 NY2d 964, Iv dismissed 79 NY2d 999).

Further, based upon our own examination, we reject the contention that the photographs were inflammatory or that their evidentiary value was outweighed by their prejudicial tendency. Contrary to respondent’s assertion, no stipulation was made concerning the nature of the child’s injuries, and we conclude that the photographs were useful in establishing the nature and severity of the child’s injuries, to contradict respondent’s testimony that she only spanked the child with her hand, leaving no visible marks, and to corroborate the testimony of other hearing witnesses (see, People v Wood, 79 NY2d 958, 960; Matter of I. Children, 191 AD2d 699, Iv denied 82 NY2d 655). Moreover, the cases relied upon by respondent have no reasonable application in the context of a nonjury Family Court trial (see, Matter of Catherine K., 256 AD2d 1025).

Cardona, P. J., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.

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Mercure, J.

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered August 22, 1998, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 10, to adjudicate respondent’s children to be abused and/or neglected.

Following a fact-finding hearing, Family Court found that respondent had abused her daughter by striking her in the face, back and arms with an electrical cord, causing welts and bruising. On appeal from the ensuing order, respondent merely challenges Family Court’s receipt of photographs depicting the child’s injuries. Initially, we are not persuaded that Family Court erred by assisting petitioner’s counsel in establishing a foundation for admission of the photographs. A court may “properly question witnesses to insure that a proper foundation is made for the admission of evidence” (People v Yut Wai Tom, 53 NY2d 44, 58) and question a witness “ fin an effort to clarify confusing testimony as well as * * * to facilitate the orderly and expeditious progress of the [hearing]’ ” (Matter of William T., 182 AD2d 766, 767, quoting People v Collins, 171 AD2d 670, 671, Iv denied 78 NY2d 964, Iv dismissed 79 NY2d 999).

Further, based upon our own examination, we reject the contention that the photographs were inflammatory or that their evidentiary value was outweighed by their prejudicial tendency. Contrary to respondent’s assertion, no stipulation was made concerning the nature of the child’s injuries, and we conclude that the photographs were useful in establishing the nature and severity of the child’s injuries, to contradict respondent’s testimony that she only spanked the child with her hand, leaving no visible marks, and to corroborate the testimony of other hearing witnesses (see, People v Wood, 79 NY2d 958, 960; Matter of I. Children, 191 AD2d 699, Iv denied 82 NY2d 655). Moreover, the cases relied upon by respondent have no reasonable application in the context of a nonjury Family Court trial (see, Matter of Catherine K., 256 AD2d 1025).

Cardona, P. J., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.

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260 A.D.2d 964, 689 N.Y.S.2d 277, 1999 N.Y. App. Div. LEXIS 4432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-eshale-o-nyappdiv-1999.

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