Matter of Gabriel W. (Steven C.)

130 A.D.3d 742, 11 N.Y.S.3d 879

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 2015
• Docket: 2014-01602
• Status: Published

Opinion

Appeal from a corrected order of fact-finding and disposition of the Family Court, Kings County (Alan Beckoff, J.), dated February 10, 2014. The corrected order, after a hearing, found that the father neglected the subject children and placed them in the custody of the Commissioner of Social Services of the City of New York.

Ordered that the corrected order of fact-finding and disposition is affirmed, without costs or disbursements.

Contrary to the father’s contention, the Family Court was entitled to draw a negative inference against him based upon his failure to testify at the fact-finding hearing (see Baxter v Palmigiano, 425 US 308, 318 [1976]; Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; Matter of Jackson F. [Gabriel F], 121 AD3d 1114, 1115 [2014]; Matter of Mylasia P. [Brenda P.], 104 AD3d 856, 856 [2013]; Matter of Natalie T. [Roger T.], 104 AD3d 697, 698 [2013]).

The Family Court also properly refused to admit into evidence a recording containing alleged prior inconsistent statements of the mother since the father failed to lay a proper foundation for its admission (see People v Duncan, 46 NY2d 74, 80-81 [1978]; People v Stokes, 126 AD3d 1018, 1018 [2015]; People v Sawyer, 304 AD2d 775, 776 [2003]).

The father’s remaining contention is without merit. Rivera, J.R, Dickerson, Cohen and Barros, JJ., concur.