In re Doe
Spain, J.
In October 2004, petitioner commenced this Family Ct Act article 10 proceeding against respondent alleging that he had sexually abused the then 10-year-old daughter (hereinafter the girl) of his girlfriend on September 26, 2004 while the girl was in his care, and that she was an abused and/or neglected child. The petition alleged that the three other children in the home—the two children of respondent and his girlfriend (born in 2001 and 2004), and the girlfriend‘s other child (born in 1995)—were derivatively abused and/or neglected. While that petition was pending, respondent was convicted, following a jury trial, in Supreme Court, Albany County, of sexual abuse in the first degree (see
After the convictions, petitioner moved for summary judgment on the Family Ct Act article 10 petition based upon the
To the extent respondent attempts to relitigate—in this Family Ct Act article 10 proceeding—the propriety of the application of the rape shield law at his criminal trial, those arguments have been rejected by this Court on his appeal from his criminal conviction (People v Mann, 41 AD3d at 978-979). They will not be entertained again here.
With regard to petitioner‘s successful summary judgment motion, it is an appropriate device in Family Court proceedings where no triable issues of fact exist (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178, 182 [1994]). A criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct (see id. at 182-183; Matter of Diana N., 34 AD3d 1058, 1059 [2006]; Matter of Denise GG., 254 AD2d 582, 583 [1998]). Here, there is no dispute that the criminal conviction resolved the identical issue presented by this petition, i.e., respondent‘s sexual abuse of the girl on a specific date. The only issue is whether the application of the rape shield law in his criminal trial operated to deprive him of a “full and fair opportunity” to litigate the issue of his guilt, precluding the application of collateral estoppel principles in this Family Ct Act article 10 proceeding. The answer is, decidedly, no.
Under the rape shield law, “[e]vidence of a victim‘s sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense [proscribed by article 130] of the penal law” (
In opposing petitioner‘s motion and seeking to avoid collateral estoppel effect of his criminal conviction, respondent merely submitted the affidavit of his counsel, not based upon personal knowledge, conclusorily claiming that evidence which was precluded at trial under the rape shield law would have proven that the girl was previously* the victim of sexual abuse perpetrated by someone other than respondent, and would have created a reasonable doubt that respondent was the perpetrator. Respondent did not submit an affidavit or any documentation of or support for his trial offer of proof. Respondent‘s submissions in opposition were, consequently, patently deficient and did not demonstrate the existence of questions of fact requiring a trial on this Family Ct Act article 10 petition (see id. at 183; Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]).
Further, although we need not decide the issue, respondent‘s underlying supposition that evidence which is precluded by the rape shield law is necessarily admissible in a Family Court proceeding is not supported by any authority and, indeed, there is authority to the contrary (see Matter of Philip M., 179 AD2d 1034, 1035 [1992]; Matter of Trisha M., 150 Misc 2d 290, 291-294 [1991] [upholding Family Court‘s authority to limit questioning of a child concerning prior sexual conduct]). Finally, we outright reject the contention that preclusion of evidence
Turning to respondent‘s claim that Family Court should not have found the other children to be derivatively neglected based solely upon his criminal convictions, we disagree. “A finding of derivative neglect is appropriate where the evidence as to a directly abused child demonstrates that a respondent‘s parental judgment is so impaired that the respondent presents a substantial risk of harm to any child in his or her care” (Matter of Jewle I., 44 AD3d 1105, 1106 [2007] [citations omitted]; see Matter of Sabrina M., 6 AD3d 759, 761 [2004]; cf. Matter of Cadejah AA., 33 AD3d 1155, 1157 [2006]). Thus, Family Court properly determined that the girl is an abused child (see
Crew III, J.P., Peters, Carpinello and Mugglin, JJ., concur.
Ordered that the order is affirmed, without costs.