Linda O., Matter of

• Decision Date: 18 August 1978
• Citation: 95 Misc.2d 744,408 N.Y.S.2d 308
• Parties: In the Matter of LINDA O. * and Wilder O.*, children under sixteen years of age alleged to be abused by, Edgar O.*, Respondent. Family Court, City of New York, Queens County
• Court: New York City Court

Page 308

408 N.Y.S.2d 308

95 Misc.2d 744

In the Matter of LINDA O. ^* and Wilder O.* children under sixteen years of age alleged to be abused by, Edgar O.*, Respondent Family Court, City of New York, Queens County.

Aug. 18, 1978.

Arthur Goldman, Asst. Corp. Counsel, Jamaica, Alan G. Krams, New York City, of counsel, for Commissioner of Social Services, petitioner.

Robert Schwartz, Kew Gardens, for respondent.

Samuel E. Dulberg, Legal Aid Society, Jamaica, Law Guardian for children.

DECISION on MOTION

NICHOLAS L. PITARO, Judge.

In this proceeding, the respondent having been charged with child abuse, moves for an order, prohibiting the petitioner from using, during the cross-examination of the respondent, the information contained in allegation No. 1 in the petition, on the ground that it should be barred pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974).

Allegation No. 1 in the petition states:

"Respondent Edgar O has a long history of violent behavior and he spent 1942-1955 in Mattawan State Hospital for the criminally insane after killing an Army Lieutenant."

It is the contention of the respondent that this information is neither material nor relevant to the instant proceeding due to the remoteness of the prior commitment and the dissimilar nature of the past and present charges, criteria which are set forth in Sandoval, supra. The respondent also alleges, as required by Sandoval, that the unjust prejudice which would result from the use of this information on cross-examination far outweighs the probative worth of the evidence on the issue of credibility. It is also alleged by the respondent that the use of this evidence would deny his right to a fair trial as his concern over the impact of the impeachment testimony would materially affect his decision to testify.

This court finds that it is unnecessary to decide the merits of the contentions advanced by the respondent, as the holding in Sandoval, supra, providing for a prospective ruling as to the permissible scope of cross-examination concerning prior criminal and immoral acts in a criminal prosecution is inapplicable to proceedings brought pursuant to Article 10 of the Family Court Act.

Section 1046 of the Family Court Act governs evidence in a child abuse proceeding. This section does not however make reference to the cross-examination impeachment of a respondent. Thus, this Court must look to Section 165(a) of the Family Court Act which states,

". . . Upon the effective date of the CPLR, where the method of procedure in any proceeding in which the family court has jurisdiction is not prescribed, the provisions of the civil practice law and rules shall apply to the extent that they are appropriate to the proceedings involved."

The courts have found that child abuse proceedings are civil in nature. In Re B., 71 Misc.2d 176, 335 N.Y.S.2d 535; Matter of A., 65 Misc.2d 1034, 319 N.Y.S.2d 691. Thus, the relevant statute under the CPLR would apply to Article 10 proceedings, if the court finds that it is appropriate.

With regard to impeaching a witness by the use of a prior conviction, CPLR § 4513 states:

"A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question or by the record. The party cross-examining is not concluded by such person's answer."

This court finds that § 4513 of the CPLR which permits the introduction of prior crimes is appropriate for use in an Article 10 proceeding. The issue is whether the Sandoval exception to impeachment by proof of prior convictions in criminal prosecutions is also applicable to civil proceedings, and would permit the Trial Judge in a...