In re Leah M.

Appellate Division of the Supreme Court of New York

In re Leah M.

81 A.D.3d 434, 916 N.Y.S.2d 70

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

DecidedFebruary 3, 2011

StatusPublished

Cited by5 cases

This text of 81 A.D.3d 434 (In re Leah M.) 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 Leah M., 81 A.D.3d 434, 916 N.Y.S.2d 70 (N.Y. Ct. App. 2011).

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Opinion

Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about March 3, 2010, which, inter alia, found that respondent father neglected the subject children, unanimously affirmed, without costs.

A preponderance of the evidence supports the finding of neglect as the evidence established that respondent created an imminent danger that the physical, mental and emotional health of the children would be harmed (see Family Ct Act § 1012 [f] [i]; § 1046 [b] [i]). The hearing testimony showed that the detectives who executed a search warrant of respondent’s residence found guns and ammunition that were within the reach of the children (see Matter of Tajani B., 49 AD3d 874 [2008], lv denied 10 NY3d 717 [2008]).

Since proceedings under article 10 of the Family Court Act are civil rather than criminal in nature, the negative inference drawn from respondent’s failure to testify did not violate his Fifth Amendment rights in the criminal case that was pending against him at the time of the hearing (see Matter of Nicole H., 12 AD3d 182, 183 [2004]). Concur—Saxe, J.P., Friedman, Catterson, Acosta and Richter, JJ.

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Order, Family Court, Bronx County (Gayle P. Roberts, J.), entered on or about March 3, 2010, which, inter alia, found that respondent father neglected the subject children, unanimously affirmed, without costs.

A preponderance of the evidence supports the finding of neglect as the evidence established that respondent created an imminent danger that the physical, mental and emotional health of the children would be harmed (see Family Ct Act § 1012 [f] [i]; § 1046 [b] [i]). The hearing testimony showed that the detectives who executed a search warrant of respondent’s residence found guns and ammunition that were within the reach of the children (see Matter of Tajani B., 49 AD3d 874 [2008], lv denied 10 NY3d 717 [2008]).

Since proceedings under article 10 of the Family Court Act are civil rather than criminal in nature, the negative inference drawn from respondent’s failure to testify did not violate his Fifth Amendment rights in the criminal case that was pending against him at the time of the hearing (see Matter of Nicole H., 12 AD3d 182, 183 [2004]). Concur—Saxe, J.P., Friedman, Catterson, Acosta and Richter, JJ.

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Bluebook (online)

81 A.D.3d 434, 916 N.Y.S.2d 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-leah-m-nyappdiv-2011.

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