In re Daniel BB.
Due to the loss of several exhibits by Family Court after the hearing, which include a series of medical photographs, respondent contends that a new trial is required because meaningful appellate review is precluded. We disagree. Despite their inability to be produced on appeal, the record reflects that the relevant photographs were taken by pediatric sexual assault nurse examiner, Rita Belmonte, during her examination of Daniel; they were admitted into evidence as part of Belmonte‘s testimony. She testified that certain of the photographs, taken by her with a culpascope which magnifies an area up to 35 times, revealed obvious scarring outside of Daniel‘s rectal verge,* consistent with a penetration injury from the outside in. Based upon her physical examination and a forensic analysis of the area, Belmonte testified that Daniel‘s injury was the result of a sexual assault. Since we find the photographs to be supplemental to Belmonte‘s testimony, the loss of these exhibits was not fatal (see People v Glass, 43 NY2d 283, 286 [1977]; Matter of Roland R., 290 AD2d 278, 278 [2002]).
We agree with respondent‘s contention that Family Court erred when it admitted the results of a polygraph test that respondent took in connection with a mental health evaluation (see Matter of Loren B. v Heather A., 13 AD3d 998, 999-1000 [2004], lvs denied 4 NY3d 710 [2005]). The test was administered by Richard Hamill, petitioner‘s mental health expert, in connection with his evaluation of respondent. Hamill‘s testimony, which included information from numerous sources—including a background check, personality test and a personal interview of respondent—reveals, however, that his analysis did not rest, in any significant degree, on the results of such test. As it is presumed that Family Court will rely only upon competent evidence (see Matter of Rita VV., 209 AD2d 866, 868 [1994], lv denied 85 NY2d 811 [1995]), here, Family Court explicitly stated in its determination that its finding was not influenced “to any significant degree . . . by . . . reference to
Finally, we reject any contention that respondent “received less than meaningful representation and that he suffered actual prejudice as a result of the claimed deficiencies” (Matter of Jonathan LL., 294 AD2d 752, 753 [2002]). As this showing is evaluated “in totality and as of the time of the representation” (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 147 [1981]; accord Matter of Brenden O., 20 AD3d 722, 723 [2005]), despite a failure to object to the polygraph results, respondent‘s counsel conducted a thorough examination of all witnesses, questioned the validity of the polygraph results during her closing remarks and vigorously advocated for respondent (see Matter of Anson v Anson, 20 AD3d 603, 605 [2005], lv denied 5 NY3d 711 [2005]).
Crew III, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.