Hawkins, In re

• Decision Date: 09 January 1974
• Court: New York City Court
• Parties: In the Matter of Jonathan HAWKINS * and Linda Hawkins, Children under (sixteen) eighteen alleged to be (abused) and neglected.

Page 574

351 N.Y.S.2d 574

76 Misc.2d 738

In the Matter of Jonathan HAWKINS ^* and Linda Hawkins, Children under (sixteen) eighteen alleged to be (abused) and neglected.

Family Court, City of New York, New York County.

Jan. 9, 1974.

Norman Redlich, Corp. Counsel of City of New York, New York City by Frank J. Carabetta, Asst. Corp. Counsel, Brooklyn, of counsel, for petitioner.

H. Howard Friedman, New York City, for respondent.

Charles Schinitsky, Legal Aid Society, Brooklyn, by Thomas Curtis, Legal Aid Society, New York City, Law Guardians for the Children.

DECISION

HAROLD A. FELIX, Judge:

These proceedings originated in the Criminal Court of the City of New York by a felony complaint Docket No. N314353 (Respondent's Exhibit 3) charging the Respondent-father herein with an act of sodomy upon and endangering the welfare of his daughter Linda, age eleven (Penal Law Sections 130.50, 260.10). Transfer was made to the Family Court by the Criminal Court.

The instant petition charging abuse and neglect filed by the Department of Social Services on March 29, 1973 on behalf of Jonathan Hawkins and Linda Hawkins alleges that the Respondent 'did perpetrate numerous acts of a sexual nature against the child, Linda, specifically, on or about March 9, 1973 he did place his penis against the child's naked posterior.'

After a full, fair and impartial hearing, including the testimony of four witnesses and the Respondent, and the introduction into evidence of five numbered exhibits, the Court by a preponderance of the competent, material and relevant evidence adduced, is constrained to make a finding of abuse as to the child Linda, and a finding of neglect as to the child Jonathan.

Petitioner's Exhibit I, consists of Linda's out-of-court statement to a social worker with regard to the said act of sexual contact with the Respondent and was admitted into evidence pursuant to Section 1046(a)(vi) of the Family Court Act:

' § 1046. Evidence

(a) In any hearing under this article . . . (vi) previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact-finding of abuse or neglect.'

The required corroboration was supplied by an eye-witness to the said occurrence, thirteen-year-old Jonathan. Jonathan testified under oath that while passing by the open bathroom door he saw the Respondent standing behind Linda and 'gyrating' against her while her pants were down.

The exception to the hearsay rule set forth in Section 1046(a)(vi) must be interpreted within the constitutional framework of due process. Gardinal v. Munyan, 30 A.D.2d 444, 294 N.Y.S.2d 180. The very purpose of Article 10 as expressed in Section 1011 is 'to provide a due process of law' mechanism for the State's intervention into the parent-child relationship. Albeit a civil proceeding, certain Fifth Amendment rights (i.e., self-incrimination) are not viable. Matter of Gigi B., 71 Misc.2d 176, 335 N.Y.S.2d 535.

Fair treatment necessitates in the instant case that the required corroboration within the meaning of Section 1046(a)(vi) be sworn testimony, thereby subjecting such testimony to the fire of cross-examination. No other case on this point has come to light. The essence of corroboration may then be gleaned from other situations requiring it. Corroboration is defined in Ballentine's Law Dictionary at page 276 (3rd Ed. 1969), as 'evidence of such substantial facts and circumstances as will produce in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essentials . . . Corroboration is somewhat less than confirmation . . .'. Accordingly, corroborating evidence is defined as '(A)dditional evidence of a different character to the same point . . . such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated; that is, such as tends to show its truth, or the probability of its truth.'

Thus, in light of the nature of corroborating evidence in criminal cases the courts have clearly held that one child's unsworn testimony cannot be corroborated by another child's unsworn testimony. People v. Norris, 28 Misc.2d 705, 212 N.Y.S.2d 708; People v. Nolan, 2 A.D.2d 144, 153 N.Y.S.2d 905; People v. Masiano, 253 App.Div. 454, 3 N.Y.S.2d 766.

Corroboration is also needed to substantiate the testimony of an accomplice. The weight and probative value of such evidence was analyzed by the Court in People v. Dingle, 70 Misc.2d 840, 335 N.Y.S.2d 233. The question presented in Dingle was whether the presence of a person in a car was sufficient to corroborate the accomplice's testimony who was apprehended in the car with drugs in his pocket. The offered corroborative evidence was that of the arresting officer who testified that the two were in the same car. The Court stated this to be insufficient:

'The required corroborative testimony is insufficient if it tends only to establish the credibility of the accomplice. The statute does not say that there may be a conviction on the testimony of an accomplice alone, if shown to be credible. The corroborative testimony, to have any value, must be evidence from an independent source of some material fact tending to show that the defendant was implicated in the crime. The independent evidence other than that of the accomplice must fairly and reasonably tend to connect the defendant with the commission of the crime.' 70 Misc.2d at 841--842, 335 N.Y.S.2d at 235.

'. . . Dingle's explanation of why he and Early were at this specific location is merely 'testimonial bootstrapping', rather than independent buttressing.' 70 Misc.2d at 843, 335 N.Y.S.2d at 237.

It the case at bar the out-of-court statement by Linda of what transpired on March 9, 1973 was corroborated by the sworn testimony of Jonathan and thus in the Court's view in accord with Section 1046(a)(vi). Inasmuch as Jonathan took the stand and gave testimony under oath, the Court need not pass upon the issue of whether statements made to the Court In camera by the children would corroborate the out-of-court statement pursuant to Section 1046. There is Some basis to that contention since the Court of Appeals in Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659, approved of the trial court's action in a custody proceeding of interviewing the child in the absence of its parents or their counsel, the only 'test' being 'whether the deviation will on the whole benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision.' 24 N.Y.2d at 272, 299 N.Y.S.2d at 844, 247 N.E.2d at 661. As the end result in both a custody case and Article 10 proceeding may result in the parent's 'loss' of the child, there seemingly is an argument that he child's interview with the Judge may be corroboration within the meaning of Section 1046. However, as has already been stated, 'truth' in the instant case was best ascertained by Jonathan's sworn testimony serving as corroboration...